People v. Hammonds ( 2010 )


Menu:
  •                                                             SIXTH DIVISION
    February 11, 2010
    No. 1-08-0194
    THE PEOPLE OF THE STATE OF ILLINOIS,                 )      Appeal from the
    )      Circuit Court of
    Plaintiff-Appellee,                            )     Cook County.
    )
    v.                                             )      No. 06 CR 26796
    )
    TERRELL HAMMONDS,                                    )      Honorable
    )      Marcus R. Salone
    Defendant-Appellant.                    )      Judge Presiding
    JUSTICE ROBERT E. GORDON delivered the opinion of the court:
    On August 29, 2007, defendant Terrell Hammonds was convicted by a jury
    of delivering a controlled substance (720 ILCS 570/401(d) (West 2006)). On
    December 10, 2007, the trial court sentenced defendant to seven years
    imprisonment and denied defendant’s posttrial motion. On this direct appeal,
    defendant seeks a reversal of his conviction and a new trial, due to five alleged
    errors. Defendant claims that the trial court erred : (1) by giving the third
    paragraph of Illinois Pattern Jury Instructions, Criminal, No. 17.05A (4th ed.)
    (hereinafter IPI Criminal 4th) which specified that a drug “delivery”did not require
    a transfer of money or consideration; (2) by allowing police officers to testify,
    over defendant’s hearsay objection, about radio messages received from other
    officers, who were also trial witnesses; (3) by failing to ask potential jurors
    1
    No. 1-08-0194
    whether they understood and accepted certain principles of law listed in Illinois
    Supreme Court Rule 431(b) (Official Reports Advance Sheet No. 8 (April 11,
    2007), R. 431(b), eff. May 1, 2007); (4) by refusing to rule, until after defendant
    testified, on defendant’s motion in limine concerning the admissibility of
    defendant’s prior convictions for impeachment purposes. Defendant also claims
    that (5) prosecutorial misconduct during the State’s rebuttal closing denied
    defendant a fair trial. After considering carefully each of defendant’s claimed
    errors, we find that a new trial is not warranted.
    BACKGROUND
    Defendant’s two-day trial commenced on August 28, 2007 with jury
    selection, and culminated in a guilty verdict on August 29, 2007.
    Voir Dire
    Following the swearing-in of the pool of potential jurors, the trial court
    informed the venire of certain principles of law, namely: (1) that a defendant is
    presumed innocent; (2) that he is not required to offer any evidence in his own
    behalf; and (3) that he must be proved guilty beyond a reasonable doubt.
    However, the trial court did not inform the potential jurors of a fourth principle of
    law, namely (4) that a defendant’s failure to testify in his own behalf cannot be
    2
    No. 1-08-0194
    held against him. The trial court also failed to ask the prospective jurors whether
    they understood and accepted these four principles of law.
    With respect to these principles of law, the trial court stated, in pertinent
    part:
    “Under the law, a defendant is presumed to be innocent of the
    charge against him. This presumption remains with him throughout
    every stage of the trial and during the deliberation on a verdict. It is
    not overcome from [sic] unless from all of the evidence in this you are
    convinced beyond a reasonable doubt that the defendant is guilty.
    The State has the burden of proving the guilty 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 nor is he required to present any evidence on his own
    behalf. He may rely on the presumption of innocence. You are the
    judges of the facts in this case ***.”
    The trial court did later inform the jury of all four principles of law during
    the jury instructions after the close of evidence.
    Evidence at Trial
    3
    No. 1-08-0194
    After jury selection and opening statements, the State presented its
    evidence. Defendant did not testify or call witnesses. On this appeal, defendant
    did not claim that the evidence at trial was insufficient to convict him.
    Nonetheless, we will still describe in detail the State’s evidence at trial, since we
    will need to decide whether this evidence was overwhelming and whether the
    effect of any alleged error was rendered harmless by overwhelming evidence.
    At trial, the State called four witnesses in its case-in-chief. Three
    witnesses were Chicago police officers, Marco DiFranco, Boonserm Srisuth, and
    Detective William Smith, who were members of the undercover narcotics
    investigation team that arrested defendant. The remaining witness was Paula
    Bosco Szum, a chemist with the Illinois State Police Crime Laboratory, who
    analyzed the evidence recovered after defendant’s arrest.
    The first officer to testify, Officer Srisuth, stated that he was part of a nine-
    person narcotics investigation team. In the late morning of November 11, 2006,
    he and other members of his team arrived in the neighborhood of Lamon Avenue
    and Thomas Street in Chicago, Illinois. Srisuth explained that, when his team
    anticipates making a controlled buy, the duties of the officers are divided among
    an “enforcement officer, [a] surveillance officer and [a] buy officer.” On this
    4
    No. 1-08-0194
    particular day, Srisuth was the buy officer; and thus he wore civilian clothes and
    drove an unmarked vehicle. The second witness, Officer DiFranco, was the
    surveillance officer; and Detective Smith, one of the enforcement officers, was
    the fourth witness to testify at trial.
    Officer Srisuth testified that he responded to a radio transmission from the
    surveillance officer, Officer DiFranco.. At that point in the testimony, defendant
    objected on hearsay grounds. Over defendant’s hearsay objection, Srisuth
    testified that he heard DiFranco state over the radio that “a male black wearing a
    black skull cap, black jacket, black sweatpants with a white stripe and white gym
    shoes *** was selling drugs” in the vicinity of 1057 North Lamon Avenue.
    Officer Srisuth testified that, at approximately 11:14 a.m., he drove
    northbound on Lamon Avenue toward 105 North Lamon Avenue and observed
    defendant, who was the only person present in the area matching DiFranco’s
    description. Srisuth parked his unmarked vehicle on Lamon Avenue, and
    defendant approached Srisuth’s passenger window. Srisuth asked defendant if he
    had any “rocks,” which Srisuth testified was “street terminology for crack
    cocaine.” Srisuth testified that defendant asked him how many he wanted, to
    which Srisuth responded that he wanted only one. Srisuth testified that defendant
    5
    No. 1-08-0194
    removed a small, green-tinted zip-lock bag from his mouth. Srisuth testified that
    the bag contained a white, rock-like substance. Defendant gave Srisuth the bag,
    and Srisuth gave defendant a pre-recorded ten dollar bill.
    Officer Srisuth testified that, after the transaction was complete, he left the
    area and radioed the other officers that “a positive narcotics transaction” had
    occurred. He also provided the other officers with a physical description of
    defendant, including defendant’s clothing and location. Srisuth testified that the
    surveillance officer later instructed him to drive by the vicinity of 1031 North
    Lamon. At that location, Srisuth observed defendant “being detained by the
    enforcement officer” and Srisuth identified defendant as “the individual that sold
    [Srisuth] the narcotics.”
    The State’s second witness was Officer DiFranco, the surveillance officer.
    He testified that, at approximately 11:10 a.m. on November 11, 2006, he
    established a surveillance position on North Lamon Avenue where he had
    observed defendant loitering on the corner. DiFranco explained that as a
    surveillance officer, it was his responsibility to “monitor” the location and to keep
    the team informed. DiFranco testified that, on the day in question, he had
    “converted [himself] into a utility worker” and that he was driving an undercover
    6
    No. 1-08-0194
    vehicle. From his surveillance position, which was approximately “two-and-a-
    half car lengths” from defendant, he observed an unknown male approach
    defendant and hold a brief conversation with him. Defendant then pulled a small
    item from his mouth and gave it to the unknown male. DiFranco observed the
    unknown male hand defendant money and leave the area. Based on his
    experience, DiFranco suspected that a narcotics sale had just occurred.
    Officer DiFranco testified that he radioed the other officers on his team
    and informed them of what he had observed. Specifically, DiFranco testified that
    in his radio transmission, he described defendant as “a male black wearing a
    black skull cap, a black jacket, black sweatpants with a white stripe, and white
    gym shoes” and he informed the team of defendant’s location. DiFranco testified
    that, in response to this radio call, Officer Srisuth arrived in “less than a minute.”
    DiFranco observed Srisuth approach in an unmarked vehicle, which Srisuth
    “curbed” near 1057 Lamon Avenue. At that moment, DiFranco was positioned
    approximately “two-and-a-half car lengths” behind Srisuth’s vehicle, and there
    were no other vehicles between his and Srisuth’s vehicle. He testified that
    nothing blocked his view of either Officer Srisuth or defendant.
    Officer DiFranco testified that, after Srisuth stopped his vehicle, DiFranco
    7
    No. 1-08-0194
    observed defendant approach the passenger side of the undercover vehicle.
    DiFranco observed defendant and Srisuth hold a brief conversation, after which
    defendant retrieved a small item from his mouth and handed it to the buy officer.
    DiFranco testified that, during the exchange, a “late model Grand Am *** curbed
    right in front of [DiFranco] and behind the [buy] officer.” DiFranco then
    observed Srisuth’s vehicle drive away, and he informed his team by radio that a
    narcotics transaction had occurred.
    Officer DiFranco testified that he “stayed in constant surveillance” of
    defendant after Srisuth’s vehicle departed. Defendant next approached the
    driver’s side of the white Grand Am. DiFranco observed defendant and the driver
    of the
    Grand Am hold a brief conversation, after which defendant pulled a small item
    from his mouth and handed it to the driver. DiFranco testified that defendant
    reached into his left pants pocket and “pulled out an unknown amount of United
    States currency which he was holding.” Defendant was “flipping them back, and
    he then pull[ed] out an unknown amount of denomination, USC [sc] currency,
    and he tender[ed[ it to the white male driver.” DiFranco testified that the driver
    then handed defendant “an unknown amount” of United States currency, and that
    8
    No. 1-08-0194
    the Grand Am departed.
    Officer DiFranco testifed that, after the Grand Am’s departure, defendant
    started walking south on Lamon Avenue. DiFranco informed his team by radio of
    defendant’s location while maintaining constant surveillance of defendant.
    DiFranco then observed the enforcement officers, Detective Smith and Officer
    Pentimone, arrive and exit their vehicle. After the enforcement officers detained
    defendant, DiFranco informed the rest of the team by radio of the detention.
    DiFranco also instructed “the buy officer to drive around the immediate area” in
    order “to see if that was the actual seller.” Officer DiFranco observed Officer
    Srisuth drive by four or five minutes later, and DiFranco heard Srisuth inform the
    team by radio that defendant was the person who had sold drugs to Srisuth.
    Immediately after DiFranco testified about Srisuth’s radio confirmation, the
    defense objected1 and the objection was overruled.
    Officer DiFranco testified that the enforcement officers arrested defendant
    and conducted a search of defendant. DiFranco observed that the officers reached
    into defendant’s left pants pocket and retrieved a bundle of United States
    1
    The trial court stated “overruled” immediately after defense counsel stated
    “objection.” Thus, defense counsel did not state the basis for the objection.
    However, we presume from the context of the record that the basis was hearsay.
    9
    No. 1-08-0194
    currency.      The State’s third witness was Paula Bosco Szum, a chemist with the
    Illinois State Police Crime Laboratory. The chemist was qualified as an expert in
    “the field of forensic chemistry and the analysis of narcotics” without objection
    from the defense. She testified that she analyzed evidence recovered in the case at
    bar2 and that the item tested positive for the presence of cocaine and weighed
    one-tenth of a gram.
    The State’s fourth witness was Detective Smith, one of the enforcement
    officers who participated in defendant’s arrest. Smith testified that, as an
    enforcement officer in an undercover operation, he was dressed in civilian clothes
    and drove an unmarked vehicle. Smith explained that, after the buy officer
    completes a narcotics purchase, the enforcement officer is notified and provided
    with a description of the seller. It is the role of the enforcement officer to detain
    the seller and place him into custody.
    Detective Smith testified that, on November 11, 2006, he was working with
    his partner, Officer Jerry Pentimone, when he received a radio transmission from
    the buy officer, Officer Srisuth. At this point in the testimony, the defense made a
    2
    This opinion omitted descriptions of the chain of custody since the defense
    raised no challenge to it, either at trial or on this appeal.
    10
    No. 1-08-0194
    hearsay objection, which was overruled. Over the defense’s objection, Smith
    testified to the contents of the radio transmission. Smith testified that Srisuth
    stated that he had completed a controlled purchase of narcotics and that Srisuth
    provided a description of the seller’s physical appearance and clothing.
    Detective Smith next testified that he received a radio transmission from
    the surveillance officer, Officer DiFranco. The defense objected again on hearsay
    grounds, and the objection was overruled. Detective Smith testified that, in the
    radio transmission, DiFranco confirmed that the buy officer had completed a
    transaction, and that DiFranco further stated that the seller had completed a
    second transaction and had started to walk southbound on Lamon.
    Detective Smith testified that, after receiving a description by radio from
    both the buy officer and the surveillance officer, he proceeded to the area of
    North Lamon and observed a person matching this description. Officer
    Pentimone, who was driving, stopped their vehicle; and both officers exited and
    approached. Detective Smith then announced that they were police officers, and
    they detained defendant. After detaining defendant, Smith testified that he
    received a radio transmission from the surveillance officer, Officer DiFranco. At
    11
    No. 1-08-0194
    this point in the testimony, the defense objected,3 and the objection was
    overruled. Smith then testified to the contents of the radio transmission, which
    was a confirmation from DiFranco that they had detained the “right” individual.
    Detective Smith further testified that he observed the buy officer, Officer
    Srisuth, drive by. Without defense objection, Smith testified that Srisuth radioed
    “confirming that [they did] have the right gentleman stopped.” Smith’s partner,
    Officer Pentimone, then performed a search of defendant and recovered $140 in
    United States currency from defendant’s left front pants pocket. The money was
    in “different denominations, twenties, tens, fives and some singles.” The officers
    looked for, but did not recover, the recorded ten dollar bill that was used in the
    undercover purchase. They also did not find any drugs present on defendant’s
    person.
    Jury Instructions
    After the detective’s testimony, the jury was excused from the courtroom
    3
    The witness had begun to answer the question when the defense counsel
    stated “objection.” After the objection, the witness continued answering. Then the
    trial court interrupted the witness’s answer to say “overruled,” and the witness
    finished his answer. As a result, defense counsel did not have an opportunity to
    state the basis for his objection; however, we presume from the context of the
    record that the basis was hearsay.
    12
    No. 1-08-0194
    and the trial court held a conference on jury instructions. Defense counsel stated
    that there was only one jury instruction in dispute. The prosecutor requested the
    first and third paragraphs of IPI Criminal 4th No. 17.05A; and the defense
    objected.
    IPI Criminal 4th No. 17.05A provides in its entirety:
    “17.05A Definition of Deliver
    (1) The word ‘deliver’ means to transfer
    possession or to attempt to transfer possession.
    (2) The word ‘deliver’ includes a constructive
    transfer of possession which occurs without an actual
    physical transfer. When the conduct or declarations of
    the person who has the right to exercise control over a
    thing is such as to effectively relinquish the right of
    control to another person so that the other person is then
    in constructive possession, there has been a delivery.
    (3) A delivery may occur with or without the
    transfer or exchange of money, or with or without the
    transfer or exchange of other considertation.”
    13
    No. 1-08-0194
    The prosecutor explained to the trial court that she did not ask for paragraph 2,
    “because this [was] not a constructive transfer situation.”
    In his objection, the defense relied on the committee note accompanying
    the instruction. This note stated that “[g]enerally” when “the delivery in question
    was an actual physical transfer of possession, no definition of the term need be
    given to the jury, “ since “[t]he term, in this sense, is commonly understood by the
    jury.” IPI Criminal 4th No. 17.05A, Committee Note. However, the note also
    stated that “[p]aragraph (3) may be given when the Court believes it would help
    the jury understand the issue.” IPI Criminal 4th No. 17.05A, Committee Note.
    Relying on the committee note, defense counsel explained her objection,
    as follows:
    “DEFENSE COUNSEL: If you look at the committee
    notes, your Honor, for 17.05A, it states that when an offense
    involves a delivery and the evidence indicates that the delivery
    in question was an actual, physical transfer of possession, no
    definition of the term may be given to the jury. The term in
    this sense is commonly understood by the layman. That would
    be the basis of our objection to the entire instruction.”
    14
    No. 1-08-0194
    After listening to defense counsel, the trial court then ruled in defendant’s favor,
    stating:
    “TRIAL COURT: Okay.
    It’s out. It’s out. Subject to the jury asking for a
    definition of delivery.”
    Even though the trial court had just ruled, the prosecutor interjected:
    “PROSECUTOR: But, Judge, if I can just say this?
    The committee notes say it need not, which to me
    is not – my understanding of that is that it is not
    necessary if it’s not being asked for. I’m asking for it
    for a couple of reasons.
    First, I think the term deliver can be subject – I
    think it’s a little confusing, the term deliver, where this
    just simplifies it. It just means a transfer of possession.
    Additionally, Paragraph 3, the State is asking for
    it because it is entirely relevant in this case because the
    [pre-recorded ten dollar bill was] not recovered. What
    this tells the jury, we don’t need the [pre-recorded ten
    15
    No. 1-08-0194
    dollar bill] because a delivery takes place regardless of
    an exchange of consideration, regardless of any money
    being exchanged or recovered. And I think that is
    absolutely relevant in this case.
    They can ask for this as a clarification, but there
    is – there has been – this entire trial has been replete.
    Every single witness was questioned about [this pre-
    recorded ten dollar bill], making it as though it’s
    entirely necessary for the delivery to take place and
    that’s why we are asking for this instruction.”
    In response, the trial court reviewed the committee note, particularly the
    section that provided the court with discretion about whether to give paragraph 3,
    and the trial court held, with respect to paragraph 3, “[t]hat’s all that needs [sic]
    be given.” To clarify, the prosecutor asked if she should “take out [paragraphs]
    one and two and just do [paragraph] three” and the trial court agreed. Thus, the
    trial court reversed its prior ruling, and stated that paragraph 3 will be “given over
    defendant’s objection.”
    Closing Argument
    16
    No. 1-08-0194
    After the jury instruction conference, the State moved its exhibits into
    evidence, and both the State and the defense rested. The parties then proceeded
    to closing arguments.
    In her closing argument, defense counsel challenged the police
    investigation, noting that the recorded ten dollar bill was not recovered and that
    the police chose not to submit the drug evidence for fingerprint or DNA testing.
    Defense counsel discussed the missing ten dollar bill at length, stating:
    “You don’t have any [recorded] money. You
    heard us talk extensively all day about [recorded]
    money. [Recorded] money helps corroborate that they
    have the right individual in custody, the individual that
    supposedly was involved in that transaction.
    You do not have any [recorded] money recovered off [defendant], and you
    have a lame hypothesis or excuse, I’m not sure what it is, of where that may have
    gone, in that he gave money to someone in a car.
    Now, that is preposterous. He gave money to
    someone in a car before that person ever gave any
    money. That doesn’t make any sense. He gave money
    17
    No. 1-08-0194
    to someone in a car who easily could have been stopped
    by the Chicago Police Department.
    This person wasn’t even stopped. You don’t
    know whether this person had [recorded] money on
    them.”
    In its rebuttal argument, the State responded:
    “Counsel has talked to you about that. There are
    no [recorded funds] recovered in this case. You’re going
    to receive the law from the judge. What he’s going to
    tell you speaks directly to these [recorded funds].
    For the offense of delivery to occur, you will
    receive an instruction that says a delivery may occur with
    or without the transfer or exchange of money, or with or
    without the transfer or exchange of other consideration.
    You’re not going to get an instruction that says
    you can’t find this defendant guilty because there
    weren’t [recorded funds] recovered, or there wasn’t
    money recovered. It’s not necessary.
    18
    No. 1-08-0194
    Our law does not even require that the money be
    given or that money be taken or recovered. That’s not
    the law. It doesn’t matter. It doesn’t matter.”
    Following closing arguments and jury deliberations, the jury found
    defendant guilty of delivery of a controlled substance, in violation of the Illinois
    Controlled Substances Act. 720 ILCS 570/401(d) (West 2006).
    Post-Trial Motion and Sentencing
    On September 27, 2007, defendant filed a motion for acquittal
    notwithstanding the verdict or, in the alternative, for a new trial. The motion
    alleged general grounds such as lack of due process and failure to prove guilt
    beyond a reasonable doubt. The one specific allegation was that the trial court
    erred by giving a jury instruction requested by the State, over defense objection.
    On December 10, 2007, defendant filed an amended posttrial motion,
    which added the allegation that “[t]he Court erred by allowing Chicago police
    officers to testify to the content of their radio transmissions, thereby allowing the
    jury to hear impermissible hearsay evidence, and the state to bolster their case.”
    The trial court denied defendant’s motion for a new trial. After arguments
    in aggravation and mitigation, the trial court sentenced defendant to seven years
    19
    No. 1-08-0194
    in the Illinois Department of Corrections with a credit of 395 days. The trial
    court denied defendant’s posttrial motion. This appeal followed.
    ANALYSIS
    On appeal, defendant claims that the trial court erred: (1) by giving the
    third paragraph of IPI Criminal 4th No. 17.05A which specified that a drug
    “delivery” did not require a transfer of money or consideration; (2) by allowing
    police officers to testify, over the defense’s hearsay objection, about radio
    messages received from other officers, who were also trial witnesses; (3) by
    failing to ask potential jurors whether they understood and accepted the principles
    listed in Illinois Supreme Court Rule 431(b) (Official Reports Advance Sheet No.
    8 (April 11, 2007), R. 431(b), eff. May 1, 2007); (4) by refusing to rule, until after
    defendant testified, on defendant’s motion in limine concerning the admissibility
    of defendant’s prior convictions for impeachment purposes. Defendant also
    claims that (5) prosecutorial misconduct in the State’s rebuttal closing denied
    defendant a fair trial.(1) Jury Instruction Defining “Delivery”
    On appeal, defendant claims that the trial court erred by giving the third
    paragraph of IPI Criminal 4th 17.05A which specifies that a drug “delivery” does
    not require a transfer of money or consideration.
    20
    No. 1-08-0194
    The User’s Guide to the Illinois Pattern Jury Instructions explains that
    “[e]ach offense has at least two instructions: (1) a definitional instruction; and (2)
    a corresponding issues instruction.” IPI Criminal 4th, User’s Guide. In addition,
    the IPI Criminal 4th provides other types of instructions, such as those that “define
    a particular word or term.” IPI Criminal 4th, User’s Guide. It is this latter type of
    instruction, that defines a particular word or term, that is at issue in the case at
    bar.
    The instruction at issue, IPI Criminal 4th 17.05A, provides a three-
    paragraph definition of the word “deliver.” In the case at bar, the trial court gave
    only the third paragraph of the three-paragraph instruction. Both the State and
    the defense agree on appeal that the trial court was correct in not providing
    paragraphs one and two. However, the defense argues that the trial court erred in
    providing even paragraph three.
    IPI Criminal 4th 17.05A is already quoted above, in its entirety, in the
    Background section of this opinion. As quoted earlier, the third paragraph states:
    “A delivery may occur with or without the transfer or exchange of money or with
    or without the transfer or exchange of other consideration.”
    Generally, a reviewing court will review jury instructions only for an abuse
    21
    No. 1-08-0194
    of discretion. People v. Mohr, 
    228 Ill. 2d 59
    , 66 (2008). Although there must be
    some evidence in the record to justify giving a particular instruction, the decision
    whether or not to give it is within the sound discretion of the trial court. 
    Mohr, 228 Ill. 2d at 65
    . The trial court has the discretion to decide whether the evidence
    in the record raises a particular issue and whether an instruction on that issue
    should be given. 
    Mohr, 228 Ill. 2d at 65
    . “Although jury instructions are
    generally reviewed for an abuse of discretion, our standard of review is de novo
    when the question is whether the applicable law was accurately conveyed.” Barth
    v. State Farm & Casualty Co., 
    228 Ill. 2d 163
    , 170 (2008).
    The defense claims, first, that this instruction was inapplicable to the
    evidence since, as the committee note states, “the delivery in question was an
    actual physical transfer of possession, no definition of the term need be given to
    the jury.” The defense claims, second, that even if the committee note provided
    the trial court with the discretion to give paragraph 3, providing the paragraph
    minimized the State’s burden of proof, by giving the jury the impression that the
    State did not have to prove a purchase.
    The defense does not cite any case law to support its first argument that the
    committee note prohibited the trial court from providing paragraph three. Rosier
    22
    No. 1-08-0194
    v. Cascade Mountain, Inc., 
    367 Ill. App. 3d
    . 559, 568 (2006) (by failing to offer
    supporting legal authority or “any reasoned argument,” plaintiffs waived
    consideration of their argument); People v. Ward, 
    215 Ill. 2d 317
    , 332 (2005)
    (“point raised in a brief but not supported by citation to relevant authority ... is
    therefore forfeited.”); In re Marriage of Bates, 
    212 Ill. 2d 489
    , 517 (2004) (“A
    reviewing court is entitled to have issues clearly defined with relevant authority
    cited.”); Ferguson v. Berger, 
    302 Ill. App. 3d 61
    (1998) (“it is not necessary to
    decide this question since the defendant has waived the issue” by failing to offer
    case citation or other support as Supreme Court Rule 341 requires); 210 Ill. 2d R.
    341 (h)(7) (argument in appellate brief must be supported by citation to legal
    authority and factual record).
    This is not surprising, since the defense’s argument misreads the note. The
    note states that, in the case of an “actual physical transfer,” no definition “need be
    given.” The American Heritage Dictionary states that, as a verb, the word “need”
    means “to be under the necessity of or the obligation to.” American Heritage
    Dictionary, Second College Edition 835 (1985) (hereinafter American Heritage).
    In its detailed “Usage” section following the word “need,” the dictionary explains
    that “‘you needn’t come’ means ‘you are under no obligation to come.’ ”
    23
    No. 1-08-0194
    American Heritage 835. Thus, the negative form, which is used in the note,
    means that, while the trial court was under “no obligation” to give the instruction,
    it was not prohibited either. American Heritage 835.
    If there was any doubt that the committee note provided the trial court with
    the discretion to give paragraph three, that doubt was erased by the note’s
    subsequent comment that “[p]aragraph (3) may be given when the Court believes
    it would help the jury understand the issue.” IPI Criminal 4th No. 17.05A,
    Committee Note. Thus, the decision of whether to provide paragraph 3 was left
    to the sound discretion of the trial court, as are most decisions regarding whether
    to provide certain jury instructions. E.g. 
    Mohr, 228 Ill. 2d at 65
    .
    The defense’s second argument misconstrues the law, and almost
    underscores the need for the instruction. The defense argues that the issue for the
    jury to resolve was whether a drug purchase took place, and thus the instruction
    minimized the state’s burden of proof.
    However, the State did not have to prove that a purchase took place. The
    indictment accused defendant of “unlawfully and knowingly possess[ing] with
    intent to deliver *** less than 1 gram of a substance” containing cocaine, “in
    violation of Chapter 720, Act 570, Section 401(D).” To prove a charge of
    24
    No. 1-08-0194
    possession of a controlled substance with intent to deliver, the State must prove
    three elements: (1) the defendant’s knowledge of the presence of narcotics; (2)
    the defendant’s immediate possession or control of the narcotics; and (3) the
    defendant’s intent to deliver the narcotics. People v. Sanchez, 
    388 Ill. App. 3d 467
    , 473 (2009); People v. Rivas, 
    302 Ill. App. 3d 421
    , 429 (1998). Section
    401of the Illinois Controlled Substances Act provides that “it is unlawful for any
    person knowingly to manufacture or deliver, or possess with intent to
    manufacture or deliver, a controlled substance.” 720 ILCS 570/401 (West 2006).
    In contrast to what the defense argues, the statute does not require a sale or
    purchase as an element of the offense.
    The Act defines the words “deliver” and “delivery” as follows:
    “ ‘ Deliver’ or ‘delivery’ means the actual,
    constructive or attempted transfer of possession of a
    controlled substance, with or without consideration,
    whether or not there is an agency relationship.” ILCS
    570/102(h) (West 2006).
    The words “with or without consideration” in the above definition make clear that
    a sale or purchase is not required for a “delivery.” ILCS 570/102(h) (West 2006).
    25
    No. 1-08-0194
    Thus, the words of the Act that define both the offense and the word “delivery”
    leave no doubt that a sale or purchase was not part of the State’s burden of proof.
    The defense claims in its appellate brief that the purpose of paragraph 3 is
    “to clarify that a delivery can occur between friends, as a gift, or in other non-
    traditional transfers of contraband.” The defense makes this argument without
    any case support or other authority. The State could have just as easily argued
    that the purpose of this paragraph is to clarify that a delivery can occur, with or
    without recovery of the transferred consideration. The purpose of paragraph 3, of
    course, is to track the language of the Act which provides that a delivery occurs
    upon “the actual, constructive or attempted transfer of possession of a controlled
    substance, with or without consideration.” ILCS 570/102(h) (West 2006). Thus,
    the State is not required to prove a transfer of consideration in any case, whether
    the delivery occurs between best friends or complete strangers.
    For these reasons, we hold that the trial court was not prohibited from
    providing paragraph 3 of the jury instruction, in a case of actual physical transfer;
    and that the instruction’s accurate statement of the law did not minimize the
    26
    No. 1-08-0194
    state’s burden of proof.4 Thus, we find that the trial court did not abuse its
    discretion by providing paragraph 3.
    (2) Police Radio Messages
    On appeal, the defense claims that the trial court erred by allowing police
    officers to testify, over the defense’s hearsay objection, about the contents of
    radio messages received from other officers.
    The officers, who were the declarants of the radio messages, were all
    witnesses at trial; they testified about the content of their own statements, and
    were subject to cross-examination about them. Thus, the defendant has not raised
    on appeal any claims concerning his Sixth Amendment right to confront and
    cross-examine the witnesses against him. U.S. Const., amend. VI; People v.
    Spicer, 
    379 Ill. App. 3d 441
    , 449 (2008) (discussing the differences between
    “[h]earsay analysis and sixth amendment analysis”).
    Defendant’s claim on appeal concerns solely an alleged violation of the
    rule against hearsay. Hearsay is a statement that is offered to prove the truth of
    4
    In his appellate reply brief, the defendant states that he “has never
    challenged that this [paragraph 3] was an incorrect statement of law.”
    27
    No. 1-08-0194
    the matter asserted, made by the declarant at a time when he or she was not
    testifying at trial. People v. Dunmore, 
    389 Ill. App. 3d 1095
    , 1106 (2009);
    
    Spicer, 379 Ill. App. 3d at 449
    ; Federal Rules of Evidence 801(c). The rule
    against hearsay generally prevents the admission of hearsay statements in
    evidence at trial. 
    Spicer, 379 Ill. App. 3d at 449
    . However, the rule has many
    exceptions. 
    Spicer, 379 Ill. App. 3d at 449
    . In considering a hearsay objection, a
    court must decide, first, whether the statement is, in fact, hearsay. E.g. 
    Dunmore, 389 Ill. App. 3d at 1106
    . If the statement is hearsay, the court must decide,
    second, if it is still admissible under one of the many exceptions. E.g. 
    Spicer, 379 Ill. App. 3d at 449
    -50.
    An appellate court will apply an abuse-of-discretion standard of review, to
    these two decisions by the trial court. The trial court has discretion in deciding
    whether statements were, in fact, hearsay; and if they were, whether they were
    still admissible under an exception to the hearsay rule. Dunmore, 
    389 Ill. App. 3d
    at 1106 (applying an abuse-of-discretion standard to a trial court’s ruling that a
    statement was hearsay and that it did not qualify under an exception); 
    Spicer, 379 Ill. App. 3d at 450
    (applying an abuse-of-discretion standard to a trial court’s
    ruling that a hearsay statement was admissible as an exception). Hearsay rulings
    28
    No. 1-08-0194
    by a trial court are similar to other evidentiary rulings, which are generally
    reversed only for an abuse of discretion. Dunmore, 
    389 Ill. App. 3d
    at 1105. A
    trial court’s decision is considered an abuse of discretion only when the decision
    is arbitrary, fanciful or unreasonable; or where no reasonable person would take
    the view adopted by the trial court. Dunmore, 
    389 Ill. App. 3d
    at 1105.
    Defendant’s objection is not to the admission of the information contained
    in the radio messages, but to the recounting of the messages by the officers who
    heard them. On appeal, defendant does not object to the testimony by police
    officers concerning the content of the radio messages that they voiced, but rather
    objects only to the corroborating testimony by the officers who heard the
    messages.
    On appeal, defendant notes seven places in the trial testimony where
    receiving officers testified about the content of radio message that they had heard.
    The seven messages are summarized in the following chart. In the chart, Officer
    Srisuth is identified as the “Buy Officer,” Officer Di Franco is identified as the
    “Surveillance Officer,” and Detective Smith is identified as the “Enforcement
    Officer.”
    29
    No. 1-08-0194
    Summary of Radio Messages:
    Testifying                     Timing of
    Witness        Declarant       Message      Substance of Radio Message
    1.   Buy            Surveillance    Prior to     Description & location
    Officer        Offficer        controlled   of seller.
    buy.
    2.   Enforcement Buy                After        Confirmation of controlled
    buy;
    Officer        Officer         controlled   description & location of
    buy.         seller.
    3.   Surveillance   Buy             After              Confirmation of
    controlled buy.
    Officer        Officer         controlled
    buy.
    4.   Enforcement    Surveillance    After              Confirmation of
    controlled buy;
    Officer        Officer         controlled   observation of a subsequent
    buy.         transaction; location of seller.
    30
    No. 1-08-0194
    5.    Enforcement      Surveillance      After                 Confirmation that
    correct
    Officer          Officer           detention.      individual detained.
    6.    Enforcement Buy                    After                 Confirmation that
    correct
    Officer          Officer           detention       individual detained.
    7.    Surveillance             Buy               After         Confirmation that
    correct
    Officer          Officer           detention.      individual detained.
    For two of the seven statements listed above, defense counsel failed to
    object at trial. The statements that occurred without objection were statements (3)
    and (6), above. The Illinois Supreme Court has held that a “defendant must both
    specifically object at trial and raise the specific issue again in a posttrial motion to
    preserve any alleged error for review.” People v. Woods, 
    214 Ill. 2d 455
    , 470
    (2005); People v. Piatkowski, 
    225 Ill. 2d 551
    , 564 (2007). When a defendant has
    failed to preserve an error for review, we may still review for plain error.
    
    Piatkowski, 225 Ill. 2d at 562-63
    ; 134 Ill. 2d R. 615(a) (“Plain errors or defects
    affecting substantial rights may be noticed although they were not brought to the
    attention of the trial court.”). Since the defendant did raise this issue in his
    postrial motion, the plain error doctrine applies only to statements (3) and (6), but
    not to the other statements.
    31
    No. 1-08-0194
    “[T]he plain-error doctrine allows a reviewing court to consider
    unpreserved error when (1) a clear or obvious error occurs and the evidence is so
    closely balanced that the error alone threaten[s] 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.” 
    Piatkowski, 225 Ill. 2d at 565
    ; 
    Woods, 214 Ill. 2d at 471
    . However, before we reach the issue of plain error, we must first
    determine whether any error occurred at all. People v. Walker, 
    392 Ill. App. 3d 277
    , 294 (2009) (“[i]n a plain error analysis, ‘the first step’ for a reviewing court
    is to determine whether any error at all occurred”). Since we find, for the reasons
    discussed below, that no error occurred, we do not need to perform a plain error
    analysis.
    In the case at bar, the trial court overruled defendant’s hearsay objections
    without identifying the basis of its ruling. Thus the trial court did not specifically
    find whether the testimony was hearsay, or, if it was, what exception applied.
    Since we may affirm a trial court’s ruling on any basis supported in the record, we
    will examine first whether the testimony was, in fact, hearsay. People v. Dinelli,
    32
    No. 1-08-0194
    
    207 Ill. 2d 387
    , 403 (2005) (“we may affirm the circuit court on any basis
    supported by the record”).
    A statement offered for some reason, other than for the truth of the matter
    asserted, is generally admissible because it is not hearsay. Dunmore, 
    389 Ill. App. 3d
    at 1106. For example, if a statement is offered to prove its effect on the
    listener’s state of mind, or to show why the listener subsequently acted as he or
    she did, then the statement is not hearsay. 
    Dunmore, 389 Ill. App. 3d at 1106
    .
    Therefore, if a statement is offered, not for the truth of the matter asserted in its
    contents, but to explain the actions or steps that a police officer subsequently took
    during the course of an investigation, than the statement is not hearsay. People v.
    Jura, 
    352 Ill. App. 3d 1080
    , 1086 (2004); People v. Edgecomb, 
    317 Ill. App. 3d 615
    , 627 (2000); People v. Warlick, 
    302 Ill. App. 3d 595
    , 598-99 (1998).
    Defendant cites several successful hearsay challenges to police radio
    messages, where this court held that the trial court had erred by admitting the
    messages. For example, in Jura, the trial court erred by admitting testimony by
    three officers, in a gun possession case, that a police radio broadcast had provided
    the location and description of a person with a gun, and that defendant’s location
    and description matched it. 
    Jura, 352 Ill. App. 3d at 1086-87
    (1st Dist.) (we
    33
    No. 1-08-0194
    reversed on grounds of both hearsay and ineffective assistance of counsel). In
    Edgecomb, the trial court erred in admitting an officer’s testimony about a radio
    call that a vehicle’s occupants had fled after a vehicle stop; that the police
    apprehended one occupant (who later became the defendant); and that the vehicle
    matched the description of the getaway vehicle in an armed robbery. 
    Edgecomb, 317 Ill. App. 3d at 627
    (1st Dist.) (we reversed and remanded on other grounds).
    In Warlick, the trial court erred in admitting an officer’s testimony that he had
    received a radio call about “a burglary in progress,” when the sole defense at trial
    was that defendant had been seeking shelter, not to burglarize. Warlick, 302 Ill.
    App. 3d at 600-01 (1st Dist.) (however, we held that the error was harmless).
    Compare with People v. Townsend, 
    275 Ill. App. 3d 200
    , 203, 206 (1st Dist.
    1995) (a police radio dispatch about an “armed robbery in progress” was
    admissible, where the issue at trial was whether defendant had committed the
    robbery, not whether a robbery had occurred.).
    However Jura, Edgecomb, and Warlick differ from the case at bar because,
    in these cases, (1) the declarant did not testify; (2) the only evidence of the
    contents of the message was the testimony of the receiving officer; and (3) the
    testimony thus affected defendant’s sixth amendment right to confront the
    34
    No. 1-08-0194
    witnesses against him. By contrast, in the case at bar, (1) the declarant did testify
    and was subject to cross-examination; (2) the events described in the radio
    messages were received into evidence from the officers who had witnessed the
    events first-hand; and (3) the sixth amendment is not at issue.
    Despite these differences, defendant’s cited cases are close enough in
    substance to shed some light on our issue. In all three cases, we found that the
    State was using the investigative procedure as a means to place substantive
    information in front of the jury. 
    Edgecombe, 317 Ill. App. 3d at 627
    (“[t]he State
    may not use the limited investigatory exception to place into evidence the
    substance of any out-of-court statement”); 
    Jura, 352 Ill. App. 3d at 1088-89
    (the
    hearsay was used as substantive evidence to prove “the very essence of the
    dispute: whether the defendant was the man who possessed the gun”); 
    Warlick, 302 Ill. App. 3d at 600-01
    (“a serious issue in the case was whether a burglary in
    fact was taking place” and the unidentified declarant in the radio call stated that a
    “burglary [was] in progress”).
    By contrast, in the case at bar, the State was not using the investigative
    procedure as a means to place substantive information in front of the jury. The
    State used the declarants themselves as the means of placing in front of the jury
    35
    No. 1-08-0194
    what they had personally done and observed. The purpose of having other
    officers recount what they heard over the radio was to explain why the receiving
    officers then took the actions that they did. For example, the buy officer needed
    to explain that he was prompted to approach this individual at this location, by
    information received from the surveillance officer. The enforcement officer
    needed to explain that it was the confirmation of a controlled buy from both the
    buy and surveillance officers that led to his detention of the individual described.
    The three officers and trial witnesses were acting in unison, almost like the arm
    and legs of one organism, linked at its nerve center by the radio calls. Their
    actions and reactions only make sense, when viewed in relation to one another.
    Thus, the radio calls had the non-hearsay purpose of establishing their effect on
    the listener, rather than being admitted for the truth of the matter asserted. The
    matters asserted were admitted for their truth through the individuals who were
    showing what they had actually observed or how they acted in the manner that
    they did.
    The case at bar is more factually similar to Rivas than the cases cited by
    defendant. 
    Rivas, 302 Ill. App. 3d at 430-31
    . The Rivas case, like the case at bar,
    involved a controlled buy where defendant was subsequently charged with drug
    36
    No. 1-08-0194
    delivery. 
    Rivas, 302 Ill. App. 3d at 424
    , 427. The Rivas case, like the case at bar,
    concerned testimony by an enforcement officer about the contents of a radio call
    from a surveillance officer, which led the enforcement officer to arrest the
    defendant. 
    Rivas, 302 Ill. App. 3d at 431
    . In Rivas, we held that the trial court
    did not err by admitting the enforcement officer’s testimony that he made the
    arrest after receiving a radio call from the surveillance officer that the suspect had
    driven to a location, carried a package into an office, and was driving away.
    
    Rivas, 302 Ill. App. 3d at 430-31
    (1st Dist.). In Rivas, as in the case at bar, the
    surveillance officer testified at trial, and the statement was needed to explain why
    the enforcement officer subsequently acted to arrest the suspect. Rivas, 302 Ill.
    App. 3d at 427, 431. In Rivas, as in the case at bar, we found no error. 
    Rivas, 302 Ill. App. 3d at 431
    . See also 
    Townsend, 275 Ill. App. 3d at 203
    , 206 (a police
    radio dispatch about an “armed robbery in progress” was admissible to explain
    “the reason and manner in which the police conducted their investigation”).
    For these reasons, we find that, under the circumstances of this case, the
    statements were not hearsay; and the trial court did not abuse its discretion by
    admitting them. Even if we found an abuse of discretion, any error was harmless,
    for the reasons explained below, in section 3(g) of this opinion.
    37
    No. 1-08-0194
    (3) Illinois Supreme Court Rule 431(b)
    Defendant seeks a new trial, because the trial court failed to question
    potential jurors about their understanding and acceptance of certain principles of
    law, as required by the amended Illinois Supreme Court Rule 431(b). Official
    Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007)
    (2007 version).
    Although supreme court rules are not statutes, they have “the force of law,
    and the presumption must be that they will be obeyed and enforced as written.”
    Robidoux v. Oliphant, 
    201 Ill. 2d 324
    , 332 (2002), quoting Bright v. Dicke, 
    166 Ill. 2d 204
    , 210 (1995). When we review issues concerning the interpretation of a
    supreme court rule, we apply a de novo standard of review. People v. Reed, 
    376 Ill. App. 3d 121
    , 125 (2007).
    (a) History of Rule 431(b): The Four Questions
    The rule at issue, Illinois Supreme Court Rule 431(b), is a codification of
    the Illinois Supreme Court’s holding in People v. Zehr, 
    103 Ill. 2d 472
    , 477
    (1984). In Zehr, our supreme court held that a trial court erred during voir dire,
    when it refused the defense counsel’s request to ask potential jurors about four
    fundamental principles of law. 
    Zehr, 103 Ill. 2d at 476-78
    . In Zehr, our supreme
    38
    No. 1-08-0194
    court held that it is “essential to the qualification of jurors in a criminal case ...
    that they know” these four fundamental principles: “[(1)] that defendant is
    presumed innocent; [(2)] that defendant was not required to produce any evidence
    on his own; [(3)] that defendant must be proved guilty beyond a reasonable
    doubt; and [(4)] that defendant’s failure to testify on his own behalf could not be
    held against him.” 
    Zehr, 103 Ill. 2d at 477
    . These four principles are now
    commonly known as the “Zehr principles.” People v. Jocko, 
    389 Ill. App. 3d
    247,
    259 (2009); People v. Martinez, 386 Ill. Ap. 3d 153, 158 (2008); People v.
    Gilbert, 
    379 Ill. App. 3d 106
    , 109 (2008); People v. Yarbor, 
    383 Ill. App. 3d 676
    ,
    681 (2008).
    To ensure compliance with its 1984 Zehr decision, our supreme court
    amended Rule 431 twice, first in 1997 and then again ten years later in 2007. In
    1997, the supreme court amended Rule 431to provide that, if requested by
    defendant, the trial court must ask potential jurors whether they understood and
    accepted the Zehr principles. 177 Ill. 2d R. 431, Committee Comments, at 1xxix.
    According to the accompanying committee notes, the 1997 amendment sought 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
    39
    No. 1-08-0194
    law.” 177 Ill. 2d R. 431, Committee Comments, at 1xxix.
    The 1997 version of Supreme Court Rule 431(b)stated, in full:
    “(b) If requested by the defendant, 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.”
    40
    No. 1-08-0194
    (Emphasis added) 177 Ill. 2d R. 431(b) (1997 version).
    This court has held that the 1997 version of Rule 431(b), as quoted above, did not
    require the trial court to ask about the Zehr principles, unless defense counsel
    asked the trial court to do so. Jocko, 
    389 Ill. App. 3d
    at 260; Gilbert, 379 Ill.
    App. 3d at 109-10, citing People v. Williams, 
    368 Ill. App. 3d 616
    , 623 (2006)
    and People v. Foreman, 
    361 Ill. App. 3d 136
    , 146 (2005); Martinez, 
    386 Ill. App. 3d
    at 160-61.
    In 2007, our supreme court amended the rule again. The 2007 amendment
    deleted the first five words: “If requested by the defendant.” Official Reports
    Advance Sheet No. 8 (April 11, 2007), R. 431 (b), eff. May 1, 2007). This
    deletion had the effect of requiring the trial court to ask about the four Zehr
    principles, whether or not the defendant had made the request.
    The 2007 version of Rule 431(b), which is still in effect, states:
    “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
    41
    No. 1-08-0194
    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 (2007 version).
    (b) The Trial Court’s Error
    There is no question that, in the case at bar, the trial court erred. The 2007
    version applied to the case at bar, and the trial court failed to implement the
    changed version. Since defendant’s trial began on August 28, 2007, and since the
    2007 version of Rule 431(b) took effect several months earlier on May 1, 2007,
    the 2007 version applied to the case at bar. Although the new version applied,
    the trial court failed to ask potential jurors during voir dire whether they
    understood and accepted the Zehr principles, as the 2007 version required.
    There is no dispute between the parties that the trial court erred when it
    42
    No. 1-08-0194
    failed to question the potential jurors about the four Zehr principles listed in Rule
    431(b). The dispute between the parties is: whether this error was so
    fundamental to the integrity of the justice system that it requires automatic
    reversal; or whether we may affirm if we find that the error was harmless, in the
    context of defendant’s trial and the evidence presented against him.
    (c) Plain Error Doctrine
    Since defendant did not object at trial or raise this issue in his posttrial
    motion, we review the issue under the plain-error doctrine.
    As noted above, the Illinois Supreme Court has held that a “defendant must
    both specifically object at trial and raise the specific issue again in a posttrial
    motion to preserve any alleged error for review.” 
    Woods, 214 Ill. 2d at 470
    ;
    
    Piatkowski, 225 Ill. 2d at 564
    . When a defendant has failed to preserve an error
    for review, we may still review for plain error. 
    Piatkowski, 225 Ill. 2d at 562-63
    ;
    134 Ill. 2d R. 615(a) (“Plain errors or defects affecting substantial rights may be
    noticed although they were not brought to the attention of the trial court.”). In the
    case at bar, defendant did not object at trial or raise this issue in his posttrial
    43
    No. 1-08-0194
    motion.5 Defendant’s appellate brief conceded that “defense counsel did not
    object to the defendant’s failure to comply with Rule 431(b).”
    However, defendant claims that he did not waive the issue for appeal,
    because: (1) requiring defense counsel to object would negate the effect of the
    2007 amendment which obligated the trial court to ask the four questions sua
    sponte; and (2) the waiver rules are relaxed when the objection is directed to the
    trial judge’s conduct. The Illinois Supreme Court has held that “[a]pplication of
    the waiver rule *** is less rigid where the basis for the objection is the circuit
    court’s conduct.” People v. Davis, 
    185 Ill. 2d 317
    , 343 (1998); People v.
    Williams, 
    173 Ill. 2d 48
    , 85 (1996).
    First, requiring defense counsel to object to preserve the error for appeal
    would not negate the mandatory nature of the 2007 amendment. Trial judges are
    presumed to follow the law, and we assume that the mandatory nature of the 2007
    amendment will be followed. In addition, we apply the plain error doctrine to
    5
    In his posttrial motion, defendant raised boilerplate claims such as a denial
    of due process and equal protection, and the state’s failure to prove guilt beyond a
    reasonable doubt. The claims specific to defendant’s case were that the trial court
    “erred in giving instructions on behalf of the State over the Defendant’s objection”
    and “erred by allowing Chicago Police Officers to testify to the content of their
    radio transmissions, thereby allowing the jury to hear impermissible hearsay
    evidence.”
    44
    No. 1-08-0194
    other situations where actions are mandatory, and we have not been presented
    with a reason to carve out an exception for this issue alone. E.g. People v. Lewis,
    
    234 Ill. 2d 32
    , 39-42 (2009) (absent “exceptional circumstances,” the plain error
    doctrine will be applied even though the trial court failed to follow a statutorily-
    mandated procedure).
    Second, the typical reason for relaxing the waiver rule does not apply to
    this case. “The reason for relaxing the waiver rule is that the objection would
    have fallen on deaf ears.” People v. Davis, 
    378 Ill. App. 3d 1
    , 10 (2007). For
    example, our supreme court relaxed the waiver rule when the trial judge refused
    to consider mitigating evidence at the defendant’s death penalty hearing 
    (Davis, 185 Ill. 2d at 343
    ) or refused to allow defense counsel to participate in
    formulating a response to a jury’s note 
    (Williams, 173 Ill. 2d at 85
    ) or
    spontaneously informed the venire at defendant’s second death penalty hearing
    that a prior jury had imposed the death penalty (People v. Woolley, 
    205 Ill. 2d 296
    , 301-02 (2002)). Similarly, we relaxed the waiver rule when the trial judge
    interrupted the defendant’s testimony to offer unsolicited advice about his
    decision to testify. People v. Vaughn, 
    354 Ill. App. 3d 917
    , 920-21 (1st Dist.
    2004).
    45
    No. 1-08-0194
    In the case at bar, there was no reason to find that an objection would have
    fallen on deaf ears. Quite the contrary is true, considering that the questions were
    mandatory. Defendant’s failure to object at trial robbed the trial court of the
    opportunity to correct the error; and defendant’s failure to object in a posttrial
    motion deprived a reviewing court of any factual findings which the trial court
    might have made concerning the credibility of the witnesses and their
    contribution to the weight of the evidence against defendant, and thus the
    possible harmlessness of the error. 
    Davis, 378 Ill. App. 3d at 10-11
    . “Since
    there is no reason to think that a request from counsel would have fallen on deaf
    ears, the relaxed waiver rule does not apply in this case. As a result, this court
    will review for plain error only.” 
    Davis, 378 Ill. App. 3d at 10-11
    .
    Recently, the Third District of this court considered this same waiver issue
    and reached the same conclusion that we do, holding: “[a]lthough our supreme
    court elected to place the duty squarely on the shoulders of the court to comply
    with the directive command in the current Supreme Court Rule 431(b), the
    amended rule does not alleviate *** counsel of the defense of an obligation to
    object when a trial judge inadvertently overlooks the applicability of Rule
    431(b).” People v. Russell, No. 3-08-0051, slip op. at 16 (November 18, 2009).
    46
    No. 1-08-0194
    Thus, we now proceed with plain-error review.
    As noted above, “the plain-error doctrine allows a reviewing court to
    consider unpreserved error when (1) a clear or obvious error occurs and the
    evidence is so closely balanced that the error alone threaten[s] 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.” 
    Piatkowski, 225 Ill. 2d at 565
    ; 
    Woods, 214 Ill. 2d at 471
    . With a plain error analysis, “it is the defendant
    who bears the burden of persuasion with respect to prejudice.” Woods, 
    214 Ill. 2d
    at 471.
    In the case at bar, defendant claims that the error was so serious that it
    “challenged the integrity of the judicial process” and thus reversal is required
    under the second prong; and that reversal is also required under the first prong
    due to the closeness of the evidence. The State claims that the error was not
    fundamental, and thus reversal is not required under the second prong; and that
    reversal is also not required under the first prong, since the evidence against
    defendant was overwhelming. For the reasons discussed below, we find that the
    47
    No. 1-08-0194
    error was not so fundamental as to require reversal under the first prong of the
    plain error analysis.
    (d) Prior Appellate Court Opinions
    A number of appellate panels before us have already ruled on the question
    of whether the failure to ask the four Zehr questions rises to the level of a
    fundamental error.6 There were four opinions filed between approximately
    Thanksgiving and Christmas 2009, alone. According to the Shepard’s service,
    one opinion was “submitted” on May 6, 2009, “filed” on November 24, 2009,
    “amended” on December 4, 2009, and “filed” again on December 7, 2009. The
    6
    Several appellate court opinions that cite Rule 431(b) are not included in
    our summary because they concern different questions. People v. Belknap, No. 3-
    08-0692 (November 18, 2009); People v. Vargas, No. 1-08-0383 (November 20,
    2009). First, although Belknap was decided on the basis of Rule 431(b), it did not
    consider whether the failure to ask the four Zehr questions was a fundamental or
    structural error, requiring automatic reversal. Instead, the Belknap court reversed
    under the first prong of the plain error doctrine, after finding that the trial court’s
    failure to ask was error, and that the evidence was closely balanced. The Belknap
    court did not discuss the second prong of the plain error doctrine, and thus it never
    considered whether the failure to inquire about the four Zehr principles challenged
    the integrity of the judicial process. Second, Vargas did not concern a failure to
    inquire, but rather concerned the form that a proper inquiry should take. Third,
    our summary also does not include appellate court opinions that discussed either
    the prior version of Rule 431(b) or whether the 2007 amendment has retroactive
    application. E.g. People v. Schmidt. 
    392 Ill. App. 3d 689
    , 710 (2009); People v.
    Braboy, 
    393 Ill. App. 3d 101
    , 109 (2009).
    48
    No. 1-08-0194
    following summary is complete only as of Christmas 2009.7
    On September 30, 2009, our supreme court vacated four of the appellate
    opinions.8 People v. Alexander, 
    233 Ill. 2d 565
    (2009); People v. Anderson, 
    283 Ill. 2d 565
    (2009); People v. Stump, 
    233 Ill. 2d 592
    (2009); and People v.
    Matchem, 
    233 Ill. 2d 583
    (2009). One of the four vacated opinions had found
    that the error was fundamental; and the remaining three had found that it was not.
    Compare People v. Anderson, 
    389 Ill. App. 3d
    1, 5, 9 (1st Dist. 2009) (error was
    so “fundamental,” that reversal was required under the second prong of the plain
    error analysis), with People v. Stump, 
    385 Ill. App. 3d 515
    , 522 (4th Dist. 2008)
    (“the error was harmless because (1) all four Zehr principles were addressed to
    each juror at some point during voir dire, and (2) the evidence presented at trial
    against defendant was overwhelming.”) and People v. Alexander, 391 Ill. App. 3d
    The concurrence and dissent in People v. Moore, decided two days before
    7
    Christmas 2009, discuss Glasper, but not on a Zehr-related topic. For this reason,
    the Moore opinion is not included in our summary. People v. Moore, Docket No.
    1-07-0410 (December 23, 2009).
    8
    In addition to vacating the four opinions on September 30, 2009, our
    supreme court also vacated six orders from the Fourth District that were not
    published pursuant to Supreme Court Rule 23. People v. Bui, No. 4-07-0651
    (February 23, 2009); People v. Dillard, No. 4-07-0977 (January 21, 2009); People
    v. Harris, No. 4-07-0821 (February 3, 2009); People v. Roberson, No. 4-07-0864
    (February 18, 2009); People v. Williams, No. 4-07-0894 (September 26, 2008);
    People v. Wright, No. 4-07-0894 (September 26, 2008).
    49
    No. 1-08-0194
    419, 433 (3d Dist. 2009) (“We cannot hold that the failure to follow a supreme
    court rule standing alone becomes a per se plain error.”). See also People v.
    Matchem, No. 4-08-0554 (April 9, 2009) (simply followed Stump). Thus, our
    supreme court vacated opinions on both sides of the issue.
    Although several opinions on this issue were not vacated, most of the intact
    opinions were based on the First District’s opinion in Anderson, which was
    vacated. The intact opinions include, in chronological order: (1) People v.
    Graham, 
    393 Ill. App. 3d 268
    (1st Dist., 1st Div., July 20, 2009); (2) People v.
    Wilmington, 
    394 Ill. App. 3d 567
    (1st Dist., 4th Div. September 24, 2009); (3)
    People v. Blair, No. 2-07-0862 (2d Dist. September 29, 2009); (4) People v.
    Arredondo, 
    394 Ill. App. 3d 944
    (1st Dist. October 8, 2009); (5) People v. Madrid,
    No. 1-08-0324 (1st Dist. October 8, 2009); (6) People v. Blanton, No. 4-08-0120
    (4th Dist. November 10, 2009); and (7) People v. Russell, No. 3-08-0051 (3d Dist.
    November 18, 2009); (8) People v. Alexander, No. 3-07-0915 (3d Dist.
    November 30, 2007) (new opinion entered after the original opinion was vacated
    by the Illinois Supreme Court) (Alexander II); (9) People v. Ammerman, No. 3-
    08-0071 (3d Dist. December 7, 2009); and (10) People v. Magallanes, No. 1-07-
    50
    No. 1-08-0194
    2826 (1st Dist. December 23, 2009). 9
    For the first six opinions, their foundation is the now vacated Anderson.
    Graham’s three-justice panel included two of the same panel members as the
    vacated Anderson, including Anderson’s authoring justice. Not surprisingly,
    Graham simply adopted Anderson, holding: “Our supreme court has yet to
    construe the 2007 version of Rule 431(b) at issue in this case. Until that time, we
    shall continue to follow Anderson ***.” 
    Graham, 393 Ill. App. 3d at 276
    . In
    Wilmington, the First District’s next opinion on the subject, we found our prior
    opinions in Anderson and Graham “more soundly reasoned” than the decisions by
    other districts in Stump and Alexander, also now vacated. Wilmington, 394 Ill.
    App. 3d at 575. In Blair, the Second District decided to join “the trend of
    authority” established by us in cases such as Anderson and Graham. Blair, No. 2-
    07-0862, slip op. at 22. In Arredondo and Madrid, two First District cases
    decided on the same day, we held that we “continue[d] to adhere to the well-
    reasoned decisions in Anderson and Graham.” 
    Arredondo, 394 Ill. App. 3d at 955
    ; Madrid, No. 1-08-0324, slip op. at 15 (same quote in both opinions).
    For the reasons discussed in footnote 10, People v. Owen, 
    394 Ill. App. 3d 9
    147 (2009) is not included in our list.
    51
    No. 1-08-0194
    The sixth opinion, Blanton, was first filed on June 17, 2009, and then
    withdrawn, and then refiled on November 10, 2009 without reference to the
    vacated opinions, but with the same result. Although the refiled Blanton opinion
    eliminated all explicit citations to Anderson, it still relied on opinions that were
    built on Anderson, namely the five opinions discussed above: (1) 
    Graham, 393 Ill. App. 3d at 276
    ; (2) 
    Wilmington, 394 Ill. App. 3d at 575
    ; (3) Blair, No. 2-07-
    0862; (4) 
    Arredondo, 394 Ill. App. 3d at 955
    ; (5) Madrid, No. 1-08-0324. See
    Blanton, No. 4-08-0120. Thus, even seemingly intact appellate opinions fell like
    a house of cards, after our supreme court removed the bottom one:, namely
    Anderson.
    Of the ten intact appellate opinions listed above, only the most recent ones,
    which are the last four listed, are not based on Anderson. Russell, No. 3-08-0051.
    For example, in reaching its holding, the Third District in Russell did not cite
    Anderson, or any of the opinions based on Anderson, or any of the other vacated
    opinions. Russell, No. 3-08-0051. Relying almost exclusively on Glasper, the
    Third District in Russell held that the error was not a per se violation requiring
    “automatic reversal.” Russell, No. 3-08-0051, slip op. at 18.
    The other three most recent appellate opinions, analyzing Glasper, also
    52
    No. 1-08-0194
    agree with Russell that this type of error is not a per se violation. Accord
    Magallanes, No. 1-07-2826, slip op. at 37 (1st Dist. December 23, 2009) ( “The
    holding in Glasper also compels us to reject defendant’s argument that Rule
    403(b)(4) errors are automatically reversible.”); Ammerman, No. 3-08-0071, slip
    op. at 13 (3d Dist. December 7, 2009) (“considering Glasper, we hold that the
    trial court in this case did not commit plain error under either prong of the rule”);
    Alexander II, No. 3-07-0915, slip op. at 20 (3d Dist. November 30, 2009) (based
    upon Glasper, appellate court found that the trial court’s failure to question the
    venire about the Zehr principles “did not render the defendant’s trial
    fundamentally unfair”).
    The supreme court’s September 30 order had the effect of leaving us with
    only a few points of intact authority: (1) our supreme court’s recent decision in
    People v. Glasper; 
    234 Ill. 2d 173
    (June 18, 2009); (2) the 2007 amendment itself;
    and (3) the four most recent appellate decisions discussing Glasper,10 which have
    10
    We do not include Owens in our list because, even though it was decided
    months after Glasper, it did not discuss, or make any reference at all, to this
    controlling supreme court opinion. Owens, 384 Ill. App. 3d, 148-155 (not a single
    cite to Glasper). In addition, the Fourth District in Owens took a hybrid approach.
    It affirmed its prior opinion in Stump (later vacated) that had applied a harmless
    error analysis. However, it held that, on “the record here,” the failure to inquire
    about the four Zehr principles challenged the integrity of the judicial process.
    53
    No. 1-08-0194
    all held that this type of error is not a per se violation. Magallanes, No. 1-07-
    2826, slip op. at 28-29 (1st Dist. December 23, 2009); Ammerman, No. 3-08-
    0071, slip op. at 13 (3d Dist. December 7, 2009); Alexander II, No. 3-07-0915,
    slip op. at 20 (3d Dist. November 30, 2009); Russell, No. 3-08-0051, slip op. at
    17-19 (3d Dist. November 18, 2009).
    When our supreme court vacated four of the appellate opinions on this
    issue, it directed the appellate court “to reconsider its judgement in light of
    People v. Glasper” and we will do just that. E.g. People v. Alexander, No.
    108562 (September 30, 2009) (“The appellate court is directed to reconsider its
    judgment in light of People v. Glasper *** to determine if a different result is
    warranted.”).
    (e) Supreme Court’s Decision in Glasper
    In Glasper, the Illinois Supreme Court was faced with an issue which is
    almost identical to the issue that we face here: what to do with a trial court’s
    failure to ask a question required by Supreme Court Rule 431(b). 
    Glasper, 234 Ill. 2d at 189
    . In Glasper, our supreme court answered that question by holding
    Thus, Owens did not hold either (1) that the failure to inquire was a per se
    violation requiring automatic reversal or (2) that harmless error analysis always
    applied. 
    Owens, 384 Ill. App. 3d at 152-54
    .
    54
    No. 1-08-0194
    that the failure was not a fundamental error, and that a harmless error analysis
    applied. Glasper, 234 Ill.. 2d at 199-200. Following the precedent set by our
    supreme court, we reach the same holding.
    In Glasper, the rule at issue was the 1997 version of Rule 431(b), which
    required the trial court to ask about the Zehr principles, only if the defense
    counsel requested an inquiry. 
    Glasper, 234 Ill. 2d at 187
    . In Glasper, the defense
    counsel did make the request, making the result the same as it is in the case at bar,
    namely that the trial court was required to ask. 
    Glasper, 234 Ill. 2d at 189
    (“once a
    defendant ma[de] a request, the decision to question the venire” became “ a
    requirement”).
    Faced with the failure to ask a required question, our supreme court held
    that this error did “not rise to the level of structural error.” 
    Glasper, 234 Ill. 2d at 199
    . Our supreme court “decline[d] to find that a violation of Rule 431(b) is per
    se reversible.” 
    Glasper, 234 Ill. 2d at 200
    . Instead our supreme court held that
    the error did “not require automatic reversal” and that it was “amenable to
    harmless error review.” 
    Glasper, 234 Ill. 2d at 200
    . In support of its holding, our
    supreme court observed the questioning set forth in Rule 431(b) was “not
    uniformly required in other state and federal jurisdictions. 
    Glasper, 234 Ill. 2d at 55
    No. 1-08-0194
    198.
    Of course, Glasper is not completely identical to our case. Glasper
    concerned the 1997 version of the rule, and our supreme court was careful to limit
    its holding to the version of the rule at that point in time. 
    Glasper, 234 Ill. 2d at 200
    . Even with this difference in mind, we find that Glasper dictates the holding
    in the case at bar. The 2007 amendment merely increased what fell under the
    scope of mandatory; and our supreme court in Glasper already answered what
    happens when there is a violation of what is mandatory under the rule, and what
    happens is a harmless error analysis. 
    Glasper, 234 Ill. 2d at 199
    - 200.
    This conclusion is consistent not only with Glasper, but also with other
    supreme court precedent. As our supreme court stated in Glasper, “[i]t would be
    inconsistent for this court to hold that a trial court’s failure to question a venire
    regarding a defendant’s decision not to testify in violation of Rule 431(b) requires
    automatic reversal, when we have repeatedly held that automatic reversal is not
    required when a prosecutor mentions a defendant’s post-Miranda silence and
    commits a Doyle violation. 
    Glasper, 234 Ill. 2d at 198
    , discussing Doyle v. Ohio,
    
    426 U.S. 610
    , 619, 
    49 L. Ed. 2d 91
    , 98, 
    96 S. Ct. 2240
    , 2245 (1976) (U.S. Supreme
    Court held that the prosecution’s use of a defendant’s post-Miranda silence for
    56
    No. 1-08-0194
    impeachment purposes is generally a due process violation). See People v.
    Dameron, 
    196 Ill. 2d 156
    , 164-68 (2001) (citing cases where the Illinois Supreme
    Court concluded that a Doyle violation amounted to harmless error).
    Thus, Glasper and other supreme court precedent compel us to find that the
    error was not a fundamental or structural error.
    (f) 2007 Amendment
    Our conclusion is supported not only by Glasper and by other supreme
    court precedent, but also by the 2007 amendment itself.
    In Glasper, the dissent claimed that the majority opinion “renders this
    court’s 2007 amendment of Rule 431(b) nonsensical.” 
    Glasper, 234 Ill. 2d at 230
    . In other words, there was no point in changing the rule from discretionary to
    mandatory, if its violation will usually found to be harmless error. Since the trial
    court will provide the same information to the jury at the end of trial, the jury
    instructions will contribute to a harmless error finding. C.f. 
    Glasper, 234 Ill. 2d at 201
    (“citizens sworn as jurors” are presumed to follow “the jury instructions
    given to them”). In addition, the majority in Glasper held that Rule 431(b)(4)
    questioning was not “indispensable to a fair trial.” 
    Glasper, 234 Ill. 2d at 196
    . If
    a failure to ask will be found to be harmless error in most cases, then one could
    57
    No. 1-08-0194
    argue that the change from discretionary to mandatory was without any real
    effect. Since we must interpret all rules to have effect, a lack of effect would
    render the amendment “nonsensical.” 
    Glasper, 234 Ill. 2d at 230
    .
    First and foremost, the reason why the change has a real or substantive
    effect is that trial judges are presumed to follow the law. If we presume that
    jurors will follow jury instructions, we must also presume that trial courts will
    follow Supreme Court Rules. 
    Glasper, 234 Ill. 2d at 201
    (“citizens sworn as
    jurors” are presumed to follow “the jury instructions given to them”). The effect
    of the 2007 amendment was to change the inquiry from discretionary unless
    defense counsel requested it, to mandatory at all times. This change took the
    impetus for the questions from defense counsel alone and placed it “squarely on
    the shoulders” of all the attorneys in the courtroom: the trial judge, prosecutor,
    and defense counsel. Russell, No. 3-08-0051, slip op. at 16 (effect of the 2007
    amendment was to “place the duty squarely on the shoulders of the court” to
    inquire, and to encourage both counsel to object). Now the trial judge has the
    responsibility to ask, and the prosecutor has an incentive to see that the judge
    does.
    In most of the appellate cases discussed above, the trial court’s error
    58
    No. 1-08-0194
    occurred in the months immediately after the 2007 amendment. For example, in
    the now vacated Anderson, we observed that the new rule “went into effect on
    May 1, 2007," and jury selection began just “three weeks later, on May 21, 2007.”
    Anderson, 
    389 Ill. App. 3d
    at 2. In the now vacated Stump, the jury trial began
    just six days after the new rule took effect. 
    Stump, 385 Ill. App. 3d at 517
    (trial
    began on May 7, 2007). See also Blair, No. 2-07-0862, slip op. at 2 (“Jury
    selection commenced on June 11, 2007.”); 
    Wilmington, 394 Ill. App. 3d at 570
    (“defendant’s trial occurred in July 2007"); 
    Alexander, 391 Ill. App. 3d at 421
    (vacated) (“defendant’s trial began on October 1, 2007"); Russell, No. 3-08-0051,
    slip op. at 2 (trial began October 2, 2007).11 The rule had stayed the same for a
    decade, and these early months marked an adjustment period, which is unlikely to
    be repeated.
    Second, prosecutors now have an incentive to remind trial judges who may
    forget. A prosecution of a crime is the culmination of a lot of hard work. For
    example, in the case at bar, three police officers placed themselves at risk on the
    Several of the opinions stated the offense date but not the trial date.
    11
    
    Arredondo, 394 Ill. App. 3d at 945
    (the offense occurred on June 3, 2006);
    
    Graham, 393 Ill. App. 3d at 269
    (the offence occurred on September 28, 2006);
    Madrid, No. 1-08-0324, slip op. at 2-5 (the offense occurred in 2004).
    59
    No. 1-08-0194
    street to clear a neighborhood of a crack dealer. No prosecutor wants to see an
    otherwise valid conviction tossed out because the trial court neglected to ask the
    four questions. As the Third District observed in Russell, “all parties and the
    judge must take care to insure” that the questions are now asked; and the
    incentive for the prosecutors is “equally serious” to the incentive for the defense
    counsel. Russell, No. 3-08-0051, slip op. at 16.
    Third, a harmless error analysis is not toothless. On appeal, once the
    defendant establishes that an error was made, an appellate court is likely to
    reverse, unless the appellate record demonstrates that the evidence was
    “overwhelming” and the error was “harmless beyond a reasonable doubt.”
    
    Glasper, 234 Ill. 2d at 202-03
    . Previously, if defense counsel neglected to ask at
    trial and the issue was appealed, an appellate court would find that there was no
    error at all and never even proceed to a harmless-error analysis. The difference is
    that, now, an appellate court is likely to reverse the conviction, if the evidence is
    not “overwhelming.” 
    Glasper, 234 Ill. 2d at 202-03
    .
    For these reasons, we find that applying harmless error analysis to a
    violation of the 2007 amendment does not rob the amendment of its intended
    effect.
    60
    No. 1-08-0194
    (g) Harmless Error Analysis
    In Glasper, our supreme court concluded that “the trial court’s error was
    harmless beyond a reasonable doubt,” because “[t]he evidence of defendant’s
    guilt is overwhelming.” 
    Glasper, 234 Ill. 2d at 202-03
    . We reach the same
    conclusion here.
    In the case at bar, the jury found defendant guilty of the delivery of a
    controlled substance. The evidence supporting the conviction was overwhelming.
    An undercover police officer testified that he purchased crack cocaine from
    defendant. A surveillance officer witnessed the undercover purchase, as well as
    two more additional transactions in the same location, where defendant
    exchanged small items for cash. A forensic chemist confirmed that the item
    purchased during the undercover buy was cocaine. No witnesses testified for the
    defense. Although the recorded ten-dollar bill used in the undercover purchase
    was not recovered from defendant, the surveillance officer testified that he
    observed defendant pull out an unknown amount of money from a wad of bills
    and hand it to a subsequent purchaser, when defendant was apparently making
    change.
    In his argument against a harmless-error finding, defendant stated in his
    61
    No. 1-08-0194
    appellate brief only that “[t]he evidence in this case turned on the credibility of
    the officers, and was thus close.” However, defendant’s brief offered no
    explanation of how the police officers’ credibility had been discredited.
    Defendant cited in his support two cases: People v. Evans, 
    369 Ill. App. 3d 366
    (4th Dist. 2006); and People v. Wilson, 
    199 Ill. App. 3d 792
    (1st Dist. 1990). In
    both cases, the appellate court found the evidence closely balanced, where the
    conviction had forced the jurors to pick one competing witness over another. In
    Evans, the appellate court found that “the verdict was based primarily on a
    credibility determination of the competing theories testified to by the parties’
    respective experts.” 
    Evans, 369 Ill. App. 3d at 376
    . In Wilson, we court found
    that the verdict “rested on the jury’s determination of the relative credibility of the
    victim” and a witness who had “testified that the victim had a motive to lie about
    the assault.” 
    Wilson, 199 Ill. App. 3d at 795
    . By contrast, in the case at bar, no
    competing witnesses testified at trial, and thus the jury was not asked to
    determine “relative credibility.” 
    Wilson, 199 Ill. App. 3d at 795
    . In the case at
    bar, the jurors were merely asked to assess the testimony of two police officers,
    who fully corroborated each other; and whose testimony was not called into
    question by a competing witness, cross-examination or other evidence. The need
    62
    No. 1-08-0194
    for this assessment did not make the evidence “closely balanced.” Evans, 369 Ill.
    App. 3d at 376. 
    Wilson, 199 Ill. App. 3d at 795
    .
    For the reasons discussed above, we find that reversal is not required under
    either prong of the plain error doctrine. First, the error was not “so closely
    balanced that the error alone threaten[ed] to tip the scales of justice against the
    defendant.” 
    Piatkoski, 225 Ill. 2d at 565
    ; 
    Woods, 214 Ill. 2d at 471
    . Second, the
    error was “not so serious that it affected the fairness of the defendant’s trial and
    challenged the integrity of the judicial process.” 
    Piatkoski, 225 Ill. 2d at 565
    ;
    
    Woods, 214 Ill. 2d at 471
    .
    (4) Refusal to Rule on Defendant’s Motion
    Fourth, defendant claims that the trial court erred by refusing to rule, until
    after defendant testified, on defendant’s motion in limine concerning the
    admissibility of his prior convictions for impeachment purposes. For the reasons
    discussed below, we find that defendant failed to preserve his objection to the
    trial court’s refusal to rule.
    Prior to trial, both the State and the defense filed motions concerning the
    admission of defendant’s prior convictions if he testified. The trial court stated
    that it “would reserve ruling on this matter until the defendant has testified.” On
    63
    No. 1-08-0194
    appeal, defendant claims that, without knowing how the trial court would rule, he
    decided not to testify.
    Defendant acknowledges on appeal that the Illinois Supreme Court recently
    addressed this same issue in People v. Patrick, 
    233 Ill. 2d 62
    (2009) and that in
    Patrick, our supreme court held that a defendant, who does not testify, does not
    have the “right to appellate review of this issue.” 
    Patrick, 233 Ill. 2d at 79
    . Our
    supreme court clearly stated that “defendants must take the risk and present the
    testimony for the issue to be reviewable.” 
    Patrick, 233 Ill. 2d at 79
    . However,
    defendant’s counsel asks us to find that our supreme court’s holding is
    “erroneous.” Obviously, defense counsel knows that a holding by our supreme
    court is binding on this court. Presumably, the defense presents this argument in
    order to preserve it, since our supreme court granted certiorari in a case where a
    defendant filed a similar motion but did not testify. People v. Averett, 
    231 Ill. 2d 671
    (2009), granting petition for leave to appeal in People v. Averett, 381 Ill.
    App. 3d 1001, 1020 (2008) (holding that “defendant’s failure to testify eliminates
    the circuit’s refusal to rule as a reviewable issue”). As the defense is well aware,
    we must reject this argument, until and if such time that the supreme court rules
    differently.
    64
    No. 1-08-0194
    (5) State’s Rebuttal Closing
    Fifth, defendant claims that prosecutorial misconduct during the State’s
    rebuttal closing denied defendant a fair trial. For the reasons stated below, we
    find that the prosecutor did not commit misconduct in the State’s rebuttal closing
    argument, when she responded to remarks made during the defense closing.
    (a) Plain Error Review
    Defendant failed to object to this issue both at trial and in his posttrial
    motion. At trial, defendant did not object once during either the State’s initial
    closing argument or the State’s rebuttal closing argument. In defendant’s
    posttrial motion, defendant objected both to the jury instruction defining a
    delivery and to the admission of the police radio messages on hearsay grounds,
    but he did not raise any objections to the State’s closing arguments.
    As we already discussed above, to preserve an alleged trial error for
    appellate review, a defendant must both: (1) specifically object at trial; and (2)
    raise the specific issue again in a posttrial motion. 
    Woods, 214 Ill. 2d at 470
    ;
    
    Piatkowski, 225 Ill. 2d at 564
    . However, even when a defendant failed to
    preserve an error for review, an appellate court may still review for plain error.
    
    Piatkowski, 225 Ill. 2d at 562-63
    ; 134 Ill. 2d R. 615(a). The plain error doctrine
    65
    No. 1-08-0194
    permits an appellate court to reverse on the basis of unpreserved error if either:
    (1) the error was “clear or obvious,” and the evidence at trial was so closely
    balanced that this error could have tipped the scales against the defendant; or (2)
    the unpreserved error was “so serious” that it challenged the integrity of the
    judicial process and the fairness of defendant’s trial. 
    Piatkowski, 225 Ill. 2d at 565
    ; 
    Woods, 214 Ill. 2d at 471
    . Before a reviewing court analyzes the two prongs
    of the plain error doctrine, our first step is to determine whether any error
    occurred at all. 
    Walker, 392 Ill. App. 3d at 294
    . For the reasons discussed below,
    we find that no error occurred.
    (b) Standard of Review
    It is not clear whether the appropriate standard of review for this issue is de
    novo or abuse of discretion. This court has previously made this same
    observation in both People v. Phillips, 
    392 Ill. App. 3d 243
    , 274-75 (2009) and
    People v. Johnson, 
    385 Ill. App. 3d 585
    , 603 (2008). The Second District
    recently agreed with our observation that the standard of review for closing
    remarks is an unsettled issue. People v. Robinson, 
    391 Ill. App. 3d 822
    , 839-40
    (2009).
    The confusion stems from an apparent conflict between two supreme court
    66
    No. 1-08-0194
    cases: People v.Wheeler, 
    226 Ill. 2d 92
    , 121 (2007), and People v. Blue, 
    189 Ill. 2d
    99, 128, 132 (2000). In Wheeler, our supreme court held: “Whether
    statements made by a prosecutor at closing argument were so egregious that they
    warrant a new trial is a legal issue this court reviews de novo.” Wheeler, 
    226 Ill. 2d
    at 121. However, the supreme court in Wheeler cited with approval Blue, in
    which the supreme court had previously applied an abuse of discretion standard.
    Wheeler, 
    226 Ill. 2d
    at 121. In Blue and numerous other cases, our supreme court
    had held that the substance and style of closing argument is within the trial
    court’s discretion, and will not be reversed absent an abuse of discretion. Blue,
    
    189 Ill. 2d
    at 128, 132 (“we conclude that the trial court abused its discretion” by
    permitting certain prosecutorial remarks in closing); People v. Caffey, 
    205 Ill. 2d 52
    , 128 (2001); People v. Emerson, 
    189 Ill. 2d
    436, 488 (2000); People v.
    Williams, 
    192 Ill. 2d 548
    , 583 (2000); People v. Armstrong, 
    183 Ill. 2d 130
    , 145
    (1998); People v. Byron, 
    164 Ill. 2d 279
    , 295 (1995). Our supreme court had
    reasoned: “Because the trial court is in a better position than a reviewing court to
    determine the prejudicial effect of any remarks, the scope of closing argument is
    within the trial court’s discretion.” People v. Hudson, 
    157 Ill. 2d 401
    , 441
    (1993). Following Blue and other supreme court cases like it, this court had
    67
    No. 1-08-0194
    consistently applied an abuse of discretion standard. People v. Tolliver, 347 Ill.
    App. 3d 203, 224 (2004), People v. Abadia, 
    328 Ill. App. 3d 669
    , 678 (2001).
    Since Wheeler, appellate courts have been divided regarding the
    appropriate standard of review. The Second and Third Divisions of the First
    District have applied an abuse of discretion standard, while the Third and Fourth
    Districts and the Fifth Division of the First District have applied a de novo
    standard of review. Compare People v. Love, 
    377 Ill. App. 3d 306
    , 313 (1st Dist.
    2d Div. 2007) (Wolfson, J.) and People v. Averett, 
    381 Ill. App. 3d 1001
    , 1007
    (1st Dist. 3d Div. 2008) (Quinn, J.) with People v. McCoy, 
    378 Ill. App. 3d 954
    ,
    964 (3d Dist. 2008), People v. Palmer, 
    382 Ill. App. 3d 1151
    , 1160 (4th Dist
    2008), People v. Ramos, No. 1-07-3244 (1st Dist. 5th Div. December 4, 2009)
    (Toomin, J.) and Poeple v. Vargas, No. 1-08-1383 (1st Dist. 5th Div. November 20,
    2009) (Toomin, J.).
    However, we do not need to resolve the issue of the appropriate standard of
    review at this time, because our holding in this case would be the same under
    either standard. This is the same approach that we took in both Phillips and
    Johnson, and the same approach taken by the Second District in its recent
    Robinson opinion. 
    Phillips, 392 Ill. App. 3d at 275
    ; 
    Johnson, 385 Ill. App. 3d at 68
    No. 1-08-0194
    585; Robinson,391 Ill. App. 3d at 840 (“In any event, like the Johnson court, we
    leave the resolution of this issue to another day, as our conclusion would be the
    same applying either standard.”).
    (c). Substantial Prejudice
    A State’s closing will lead to reversal only if the prosecutor’s remarks
    created “substantial prejudice.” Wheeler, 
    226 Ill. 2d
    at 123, 
    Johnson, 208 Ill. 2d at 64
    , People v. Easley, 
    148 Ill. 2d 281
    , 332 (1992) (“The remarks by the
    prosecutor, while improper, do not amount to substantial prejudice.”). Substantial
    prejudice occurs “if the improper remarks constituted a material factor in a
    defendant’s conviction.” Wheeler, 
    226 Ill. 2d
    at 123.
    When reviewing claims of prosecutorial misconduct in closing argument, a
    reviewing court will consider the entire closing arguments of both the prosecutor
    and the defense attorney, in order to place the remarks in context. Wheeler, 
    226 Ill. 2d
    at 122, People v. Johnson, 
    208 Ill. 2d 53
    , 113 (2003), People v. Tolliver,
    
    347 Ill. App. 3d 203
    , 224 (2004). A prosecutor has wide latitude during closing
    argument. Wheeler, 
    226 Ill. 2d
    at 123; Blue, 
    189 Ill. 2d
    at 127. “In closing, the
    prosecutor may comment on the evidence and any fair, reasonable inferences it
    yields.” People v. Nicholas, 
    218 Ill. 2d 104
    , 121 (2005).
    69
    No. 1-08-0194
    “Statements will not be held improper if they were provoked or invited by
    the defense counsel’s argument.” 
    Glasper, 234 Ill. 2d at 204
    . For example, in
    Glasper, defendant argued that the prosecutor had “shifted the burden of proof to
    defendant when, in response to defendant’s claim of a coerced confession, the
    prosecutor had stated in rebuttal closing: “Where’s the evidence of that?”
    
    Glasper, 234 Ill. 2d at 212
    . Our supreme court held that the comment “did not
    shift the burden of proof to defendant,” but that it merely “pointed out that no
    evidence existed in this case to support defendant’s theory” and that it was
    “invited by defense counsel’s argument.” 
    Glasper, 234 Ill. 2d at 212
    .
    Similarly, in the case at bar, we find, for the reasons discussed below, that
    the prosecutor’s comments in the rebuttal closing did not shift the burden of proof
    and were invited by the defense counsel’s argument. Although we have reviewed
    the closing arguments in their entirety, we provide in this opinion only the
    remarks made by defense counsel to which the prosecutor responded, as well as
    the remarks by the prosecutor which defendant claims on appeal were
    objectionable.
    (d) Contested Remarks
    On appeal, defendant complains about three sets of remarks made by the
    70
    No. 1-08-0194
    prosecutor during the State’s rebuttal closing, claiming that: (i) one set shifted
    the burden of proof to defendant by implying that he should have requested
    scientific testing: (ii) a second set minimized the State’s burden of proof; and (iii)
    and a third set bolstered the credibility of the police witnesses by invoking their
    authority as police officers.
    (i) Scientific Testing
    In closing argument, defense counsel discussed, at length, the lack of DNA
    and fingerprint testing, stating:
    “The Chicago Police Department chose *** not to
    request any fingerprint evidence in this case. They
    chose not to request DNA evidence in this case, and
    they’re the ones who are in custody of the supposed
    evidence.
    Don’t let the State try and shift that burden on us.
    We don’t have custody of that evidence. They have
    custody of that evidence. And three days later, the
    person in the crime lab has custody of the evidence and
    is handling it without gloves because no requests have
    71
    No. 1-08-0194
    been made.
    You don’t have to accept that. You don’t have to
    say that’s okay. They didn’t do a good enough job as
    far as that’s concerned.
    And it’s up to you to tell them that that is not
    acceptable.”
    On appeal, defendant challenges the following remarks which the
    prosecutor made in response. The State confirmed that defendant did not have a
    burden in this case, but noted that defense counsel had elicited testimony from the
    State’s forensic expert that requests for DNA or fingerprint testing may be
    submitted by the police, the State, or the defense. Specifically, the prosecutor
    stated:
    “And you heard from ISP, the Illinois State Police
    Crime Lab, Miss Paula Bosco Szum. She as well,
    thousands of narcotics she’s personally been given to
    analyze and she specified to you in what situations DNA
    or fingerprints is [sic] requested of those thousands of
    times.
    72
    No. 1-08-0194
    What she said matched exactly what the officer
    said. Counsel is correct. The defendant bears
    absolutely no burden in this case. But she asked the
    question of Miss Szum to describe those circumstances.
    What was Ms. Szum’s answer? Sometimes, it’s
    from the police of those two or three times, the State or
    the Defense.”
    After defense counsel argued in its closing “[d]on’t let the State try and
    shift that burden on us,” the State was almost forced to respond with a denial.
    The State’s response included drawing the jury’s attention to testimony that the
    defense had elicited on cross-examination. During direct examination, the State
    had asked its forensic expert if both the State and the defense could request DNA
    or fingerprint testing. Instead of objecting to the question, the defense made the
    strategic decision to explore the topic on cross-examination, eliciting that a
    defense request had occurred only once during the career of that witness. On
    appeal, the defendant cannot be heard to complain now about either an argument
    that he invited or testimony that he elicited. 
    Glasper, 234 Ill. 2d at 205
    (“Defendant cannot complain that the State made reference to evidence in closing
    73
    No. 1-08-0194
    which defendant helped elicit.”)
    (ii) Burden of Proof
    Defense counsel ended her argument by discussing the State’s burden to
    prove guilt beyond a reasonable doubt. The defense argued:
    “Let’s talk about reasonable doubt. No
    [recorded] funds. That’s a reasonable doubt. No drugs
    recovered on [defendant]. That’s a reasonable doubt.
    No video equipment used in this case. That’s a
    reasonable doubt. No audio equipment used in this
    case. That’s a reasonable doubt.
    The circumstances of how this identification was
    constructed. That’s a reasonable doubt. No DNA
    evidence. That’s a reasonable doubt.”
    On appeal, defendant challenges the following remarks which the
    prosecutor made in response::
    “[The defense] bear[s] no burden and let me say to
    you, ladies and gentleman, this burden, it’s not an
    impossible burden.
    74
    No. 1-08-0194
    It’s not something made up just for
    [defendant]. It is the same burden in every
    criminal case across the nation, our nation. People
    are convicted and tried everyday under the same
    burden. It’s not impossible. It’s not impossible.”
    The above remarks were invited by defense’s remarks that the absence of any
    possible technological tool (DNA testing, video recording, etc.) created a
    reasonable doubt. The reference to convictions occurring “every day” was not a
    reference that we condone; however, its impact was lessened by the State’s
    immediately following comment that the State’s burden was just short of
    “impossible.” Obviously, we on the appellate panel cannot know the tone with
    which this remark was delivered. We know only that it was neither objected to by
    the defense counsel who heard it, nor cautioned by the trial court who also heard
    it. From the cold and silent transcript, we cannot find reversible error from these
    words.
    (iii) Police Credibility
    Concerning the police officers’ credibility, defense counsel argued in
    closing:
    75
    No. 1-08-0194
    “Let’s talk about the circumstances of the
    undercover police officer.
    This person, as he described, he’s talking to for
    three to five seconds. Bam, that’s it, and you’re going
    to buy that they gave this detailed description of what
    this individual looked like?
    You know how they know what [defendant[ was
    wearing? [Defendant] was arrested. ***
    Of course, [defendant] is going to get identified
    during this drive by identification because he’s the only
    individual that is standing there in the custody of two
    Chicago police officers.”
    Defense counsel accused the police officers of “a lazy job of doing their police
    work.”
    In the State’s rebuttal closing, the prosecutor responded:
    “We are not hiding anything from you, ladies and
    gentlemen. They want you to believe that these officers
    are, that they are just lazy and trying to pin cases on this
    76
    No. 1-08-0194
    defendant. But why? That’s what you need to ask
    yourself.
    They basically want you to believe that these
    officers are here risking their careers individually and
    collectively. Why? For him? For less than a gram of
    cocaine? Does that make any sense to anyone? ”
    Without any evidence in the record of police fraud or misconduct, defense
    counsel argued in her closing argument that the police misidentified or framed
    her client in order to make an arrest. In rebuttal, the State responded: “Why?” In
    light of the defense’s remarks, the State’s response was not inappropriate, and
    thus no error occurred.
    The remarks, quoted above, certainly did not rise to the level of plain error.
    Even if the remarks constituted error, they were harmless, in light of the
    overwhelming evidence against defendant, which was already discussed in
    subsection (3)(g) of this opinion.
    CONCLUSION
    For the foregoing reasons, we affirm defendant’s conviction. We find,
    first, that the trial court did not abuse its discretion by giving the jury the third
    77
    No. 1-08-0194
    paragraph of IPI Criminal 4th 17.05A, which clarified that a drug delivery could
    occur without the transfer of money or other consideration. Second, the trial
    court did not abuse its discretion by allowing police officers to testify about radio
    messages received from other police officers, who were also trial witnesses.
    Third, the trial court did err by failing to ask potential jurors whether they
    understood and accepted the four legal principles listed in Illinois Supreme Court
    Rule 431(b); however, the error was harmless. Fourth, defendant failed to
    preserve his objection to the trial court’s refusal to rule, until after defendant
    testified, on his motion in limine concerning the admissibility of his prior
    convictions for impeachment purposes. Fifth, the prosecutor did not commit
    misconduct in the State’s rebuttal closing argument,
    when she responded to remarks made during the defense closing.
    Affirmed.
    CAHILL , P.J., and J. GORDON, J., concur.
    78