People v. Wheeler

FIRST DIVISION
March 31, 2010
No. 1-08-1370
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 06 CR 12782
)
JAMES WHEELER, ) The Honorable
) Lawrence W. Terrell,
Defendant-Appellant. ) Judge Presiding.
JUSTICE GARCIA delivered the opinion of the court.
The defendant, James Wheeler, was convicted of residential burglary by a jury and
sentenced to 15 years' imprisonment. He seeks automatic reversal under the plain error doctrine
based on the trial judge's alleged violation of Illinois Supreme Court Rule 431(b) (Official
Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007) for failing to
establish that each prospective juror understood and agreed with the four principles enunciated
by our supreme court in People v. Zehr, 103 Ill. 2d 472, 469 N.E.2d 1062 (1984). The State
counters the trial judge complied with Rule 431(b) and, in any event, the alleged error is not a
second-prong plain error, triggering automatic reversal.
We find the trial judge violated Rule 431(b), but the violation did not challenge the
integrity of the trial process such that automatic reversal is triggered. We follow the line of
decisions since People v. Glasper, 234 Ill. 2d 173, 917 N.E.2d 401 (2009), holding a violation of
No. 1-08-1370
Rule 431(b) is not a second-prong plain error. Because the defendant makes no claim that the
Rule 431(b) error is a first-prong plain error, the claimed error is forfeited. We affirm.
BACKGROUND
In the early morning of January 15, 2006, Daryl James Mortensen returned to his home in
a western suburb to find some of his belongings missing and one of his windows open.
Mortensen called the village police, who dusted his apartment for fingerprints. The police
obtained one set of prints from a vase that had been in Mortensen's sole custody for at least seven
years. Mortensen had used the vase to store coins but the vase was empty when he returned
home.
On May 7, 2006, the defendant was arrested outside his Chicago apartment. Edward
Rottman, a fingerprint examiner for the Illinois State Police, found that two of the fingerprints
lifted from the vase matched the defendant's. After a trial in April 2008, a jury found the
defendant guilty of residential burglary.
In the course of jury selection, Judge Lawrence W. Terrell admonished the venire of the
four principles set forth in Supreme Court Rule 431(b) (Official Reports Advance Sheet No. 8
(April 11, 2007), R. 431(b), eff. May 1, 2007). The judge informed the venire:
"Every defendant in our country is presumed to be innocent
of the charges. This presumption remains with the defendant
throughout every stage of the trial, even through your deliberations
on your verdict.
***
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The State has the burden of proving the guilt of the
defendant beyond a reasonable doubt, and this burden remains on
the State throughout the case.
A defendant is not required to prove his or her innocence,
nor is a defendant required to present any evidence at all. Any
defendant may simply rely on the presumption of innocence.
Moreover, every defendant has a Constitutional right not to
testify, and the jury cannot draw any inference of guilt if the
defendant fails to testify."
After announcing these principles, the judge discussed the division of labor between
judge and jury, the requirement that the jury arrive at a decision only after hearing all evidence
and arguments, and the prohibition against allowing one's prejudices or sympathies to taint the
verdict. He then discussed administrative matters, such as the purpose of objections, the
requirement that jurors not discuss the case outside of court, and the procedure for recesses and
lunch breaks.
Only after a relatively lengthy discussion of matters unconnected to the Zehr principles he
announced earlier, did the trial judge question the venire directly. He asked the first group of
prospective jurors: "The principles of law I described earlier, are you in agreement with those
principles?" Each eventual juror answered affirmatively. In questioning the second group of
prospective jurors, the judge asked whether they agreed with "the presumption of innocence and
the burden of proof" in addition to "the principles of law I described earlier." Each eventual juror
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No. 1-08-1370
answered affirmatively.
The selected jurors found the defendant guilty; he was sentenced to 15 years in prison.
This timely appeal followed.
ANALYSIS
Compliance With Rule 431(b)
Underlying his claim of plain error, the defendant contends the trial judge erred by not
"strictly [complying] with amended Supreme Court Rule 431(b)." The State responds the trial
judge followed Rule 431(b) by noting strict compliance is not required: the rule does not require
" 'magic words' or 'catechism.' "
We examine whether the trial judge complied with Rule 431(b), but only to determine
whether plain error occurred. We find no aid to our plain error analysis to decide whether the
rule requires "strict" or, as the State suggests, substantial compliance. See People v. Garstecki,
234 Ill. 2d 430, 445, 917 N.E.2d 465 (2009) ("Because the trial court complied with the rule's
mandatory obligation, we are not presented with the question of whether the rule is mandatory or
directory"). Rule 431(b) mandates that each prospective juror be asked about his or her
acceptance and understanding of each of the essential principles, now referred to as the Zehr
questions. In the course of making such an inquiry, the method employed by the trial judge must
afford "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. We examine the record to determine whether the clear mandates of the rule were
followed. Both sides agree that "[t]he issue of compliance with a supreme court rule is reviewed
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No. 1-08-1370
de novo." People v. Gardner, 347 Ill. App. 3d 578, 583, 808 N.E.2d 10 (2004).
In 1984, our supreme court declared: "[E]ssential to the qualification of jurors in a
criminal case is that they know that a defendant is presumed innocent, that he is not required to
offer any evidence in his own behalf, that he must be proved guilty beyond a reasonable doubt,
and that his failure to testify in his own behalf cannot be held against him." Zehr, 103 Ill. 2d at
477.
In 1997, the supreme court amended Rule 431(b) to require the Zehr questions be asked
when requested by the defendant by replacing the word "may" with "shall." 177 Ill. 2d R. 431(b).
In 2007, the supreme court again amended Rule 431(b) to place "an affirmative sua sponte duty
on the trial courts to ask potential jurors in each and every case whether they understand and
accept the Zehr principles." People v. Graham, 393 Ill. App. 3d 268, 273, 913 N.E.2d 99 (2009);
Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007. The
Committee Comments continue to state that the rule "seeks to end the practice where the judge
makes a broad statement of the applicable law followed by a general question concerning the
juror's willingness to follow the law." 177 Ill. 2d R. 431(b), Committee Comments, at lxxix.
Here, the trial judge recited each of the four Zehr principles to the entire venire, followed
by a recitation of matters not pertaining to the Zehr principles. After this relatively lengthy
recitation, he proceeded to ask the first group of prospective jurors whether they agreed with
"[t]he principles of law I described earlier." In addition to this question, the trial judge asked the
second group of prospective jurors whether they agreed specifically with "the presumption of
innocence and the burden of proof." As the State points out: "Of the 14 jurors selected, 9 jurors
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No. 1-08-1370
were asked if they agreed with the principles of law discussed earlier. With the other jurors
selected, the court asked the jurors if they agreed with the principles of law discussed earlier, and
specifically stated the presumption of innocence and the burden of proof."
We find the trial judge's inquiry of the first nine jurors, as to whether they agreed with the
"principles" he had addressed earlier, fell short of the inquiry required by Rule 431(b). The
question put to this first group of prospective jurors was much like "a general question
concerning the juror's willingness to follow the law" that Rule 431(b) sought to prohibit. 177 Ill.
2d R. 431(b), Committee Comments, at lxxix; People v. Arredondo, 394 Ill. App. 3d 944, 953-
54, 916 N.E.2d 1263 (2009) (trial judge's general inquiry about the
"appropriate verdict form" was general questioning concerning the
jurors' willingness to follow the law, which Rule 431(b) sought
to prohibit).
To be clear, we do not suggest that the rule requires
questioning of each prospective juror, either individually or in
a group, regarding the acceptance and understanding of each Zehr
principle, although following this method would obviate plain
error review on appeal. See People v. Strickland, No. 1-08-1304,
slip op. at 24-28 (March 8, 2010) (rejecting claim that the voir
dire method employed by the circuit court violated Rule 431(b)).
We do find, however, that the questioning of the prospective
jurors about each Zehr principal must be timely connected to an
"opportunity to respond to specific questions concerning the
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No. 1-08-1370
principles." Official Reports Advance Sheet No. 8 (April 11,
2007), R. 431(b), eff. May 1, 2007. As our supreme court stated
in Zehr, "essential to the qualification of jurors in a criminal
case" is that they understand and accept each of the Zehr
principles. Zehr, 103 Ill. 2d at 477. To ensure that juror
qualification is ascertained, we believe informing the
prospective jurors of the Zehr principles must precede closely in
time with "an opportunity to respond to specific questions
concerning the principles." (Emphasis added.) Official Reports
Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1,
2007.
We construe the reference to "specific questions" in Rule
431(b) to mean that the questions must specifically reference the
Zehr principles. This may be done by the question itself stating
the principle and asking the prospective jurors whether they
accept and understand the principle or the specific question
regarding their understanding and acceptance may timely follow a
recitation of each of the principles. See Strickland, slip op.
at 24-28 (where the circuit court employed the latter method).
It is clear, however, that in order to connect the Zehr
principles to the opportunity of the venire to express their
understanding and acceptance of each of the principles, the
recitation of the principles and the questioning of the venire
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No. 1-08-1370
must be connected closely in time. We find the general question
concerning the prospective jurors' acceptance of "the principles
of law I described earlier" to be inadequate because the trial
judge gave a lengthy recitation of matters outside the scope of
Zehr (15 pages of transcript) before he asked this question. As
a consequence, the trial judge failed to give the first nine
jurors "an opportunity to respond to specific questions
concerning [each of the Zehr] principles." Official Reports
Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1,
2007. Supreme court rules "are not aspirational. They are not
suggestions. They have the force of law, and the presumption
must be that they will be obeyed and enforced as written."
Bright v. Dicke, 166 Ill. 2d 204, 210, 652 N.E.2d 275 (1995).
We find that the remaining five jurors were given an
opportunity to respond to specific questions regarding "the
presumption of innocence and the burden of proof," as the State
points out. However, these eventual jurors were never asked
specific questions concerning the remaining two Zehr principles.
The method of inquiry the trial judge followed did not comply
with the mandates of Rule 431(b) because the remaining five
jurors were never asked specific questions concerning each of the
four Zehr principles. See Glasper, 234 Ill. 2d at 189 ("[t]he
trial court committed error when it ignored our long-standing
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No. 1-08-1370
precedent and our rules by refusing to question the venire in
accordance with Rule 431(b)(4)"); People v. Magallanes, No. 1-07-
2826, slip op. at 15 (December 23, 2009) ("the court failed to
ascertain whether all of the potential jurors understood and
accepted the fourth Zehr principle").
Based on the record before us, we find the trial judge
violated Supreme Court Rule 431(b) by asking the prospective
jurors whether they agreed with "[t]he principles of law," he
described much earlier, the sort of general question Rule 431(b)
sought to prohibit. The trial judge violated Rule 431(b) when he
did not inform the prospective jurors of all four Zehr principles
followed by a timely opportunity to respond to specific questions
concerning their acceptance and understanding of the principles
set out in the rule.
Plain Error
The parties agree that defense counsel did not object to the
judge's failure to comply with Supreme Court Rule 431(b) and
defense counsel did not raise the trial judge's violation in his
posttrial motion. "An unbroken line of precedent mandates that a
defendant must object to claimed errors at trial and raise them
in his posttrial motions." People v. Martinez, 386 Ill. App. 3d
153, 163, 897 N.E.2d 879 (2008), citing People v. Banks, 161 Ill.
2d 119, 143, 641 N.E.2d 331 (1994). "Otherwise, they are
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No. 1-08-1370
procedurally defaulted or forfeited." Martinez, 386 Ill. App. 3d
at 163, citing People v. Naylor, 229 Ill. 2d 584, 893 N.E.2d 653
(2008).
The defendant maintains, however, that the omission by the
trial judge is reviewable under the plain error doctrine. See
People v. Hammonds, No. 1-08-0194, slip op. at 41 (February 11,
2010) ("Since defendant did not object at trial or raise this
issue in his posttrial motion, we review the issue under the
plain-error doctrine").
"[T]he plain-error doctrine allows a
reviewing court to consider unpreserved error
when (1) a clear or obvious error occurred
and the evidence is so closely balanced that
the error alone threatened to tip the scales
of justice against the defendant, regardless
of the seriousness of the error, or (2) a
clear or obvious error occurred and that
error is so serious that it affected the
fairness of the defendant's trial and
challenged the integrity of the judicial
process, regardless of the closeness of the
evidence." People v. Piatkowski, 225 Ill. 2d
551, 565, 870 N.E.2d 403 (2007), citing
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No. 1-08-1370
People v. Herron, 215 Ill. 2d 167, 186-87,
830 N.E.2d 467 (2005).
The defendant alleges error only under the second prong of
plain error. He argues that the error itself was so serious that
it affected the integrity of the judicial process and requires
automatic reversal. Under the second-prong analysis, if the
defendant proves the error occurred, "[p]rejudice to the
defendant is presumed because of the importance of the right
involved." Herron, 215 Ill. 2d at 187.
Two Lines of Cases
Whether a violation of Rule 431(b) is a second-prong plain
error is the source of divergent lines of cases. The supreme
court issued supervisory orders on both sides of the issue,
directing that the decisions be reconsidered in light of Glasper.
See Hammonds, No. 1-08-0194, slip op. at 49 (Justice R. Gordon
provides a complete list of the cases vacated by the supreme
court).
We add our decision to the line of cases finding no second-
prong plain error decided since the supreme court ordered the
issue be reconsidered in light of Glasper. We note that at the
time of this decision, People v. Thompson, No. 1-07-2891 (July
16, 2009), appeal allowed, 234 Ill. 2d 547 (2009), is pending
before the supreme court. In Thompson, the First District, in an
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No. 1-08-1370
unpublished decision under Rule 23, held a violation of Rule
431(b) constituted plain error under the second prong, triggering
automatic reversal.
In Glasper, our supreme court addressed whether the circuit
court's failure "to conduct voir dire in accordance with Zehr and
Rule 431(b)" is subject to harmless-error analysis. Glasper, 234
Ill. 2d at 185. The supreme court found "[t]he trial court
committed error when it ignored our long-standing precedent and
our rules by refusing to question the venire in accordance with
Rule 431(b)(4)." Glasper, 234 Ill. 2d at 189. Our supreme court
ruled that harmless-error analysis applies to a violation of the
1997 version of Rule 431(b)(4). Glasper, 234 Ill. 2d at 185.
The 2007 version of Rule 431(b) at issue before us places a
sua sponte duty on the circuit court to ask each of the Zehr
questions. Official Reports Advance Sheet No. 8 (April 11,
2007), R. 431(b), eff. May 1, 2007; Graham, 393 Ill. App. 3d at
273. The 1997 version required that each of the Zehr questions
be asked of the venire only upon request of the defendant, a
request defendant Glasper made. 177 Ill. 2d R. 431(b); Glasper,
234 Ill. 2d at 187.
The dispositive question before us is whether the 2007
amendment to Rule 431(b), imposing a sua sponte duty upon the
circuit court, changed the analysis we must follow regarding a
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No. 1-08-1370
violation of the rule from one where harmless error applies, such
that automatic reversal is rejected, to one where prejudice is
presumed under the second prong of the plain error doctrine, such
that automatic reversal is mandated. See Glasper, 234 Ill. 2d at
189 ("We are called upon to determine whether the trial court's
error requires us to presume prejudice and automatically reverse
defendant's conviction, or whether the error is subject to
harmless-error analysis").
According to the State, because a violation of the 1997
version of Rule 431(b) is subject to harmless error under
Glasper, a violation of the 2007 version of the rule, to which no
substantive language change was made, cannot create "an error so
serious that it affected the fairness of the defendant's trial
and challenged the integrity of the judicial process."
Piatkowski, 225 Ill. 2d at 565, citing Herron, 215 Ill. 2d at
186-87.
The defendant contends the Glasper holding does not apply to
his case. He points to the express language in Glasper: "[T]his
holding is limited to the version of Rule 431(b)(4) that was in
effect at the time of the instant trial, and would not
necessarily apply to subsequent versions of the rule." Glasper,
234 Ill. 2d at 200. The supreme court also made clear that it
did not hold, in the context where the error was preserved, "that
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No. 1-08-1370
a Rule 431(b)(4) violation could never result in reversible
error." Glasper, 234 Ill. 2d at 200. Relying on the express
limitation in the Glasper decision, various appellate decisions
have since determined Glasper is inapplicable to cases involving
the 2007 version of the rule. See, e.g., People v. Anderson, No.
1-07-1768 (March 29, 2010) (Anderson II); People v. Yusuf, No. 4-
08-0034 (February 4, 2010) (Yusuf II).
In Yusuf II, the Fourth District held "the trial court's
failure to fully comply with the amended version of Rule 431(b)
caused 'a complete breakdown of the judicial process that
undermines this court's confidence in the jury's verdict.' "
Yusuf II, slip op. at 12, quoting People v. Owens, 394 Ill. App.
3d 148, 153, 914 N.E.2d 1280 (2009). In reconsidering in light
of Glasper, the Yusuf II court relied on the very same language
the defendant asserts to argue that a second-prong plain error
occurred: "[T]he supreme court expressly limited its holding in
Glasper to the preamended version of Rule 431(b)." Yusuf II,
slip op. at 13. Anderson II followed much the same analysis.
We acknowledge reasonable grounds exist, as expressed in
Yusuf II, Anderson II, and the dissent in this case, to disagree
on the plain error issue before us. The supreme court in Glasper
expressly held that its decision might not apply to the 2007
version of Rule 431(b), a version in existence at the time the
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No. 1-08-1370
Glasper decision was issued in 2009, while the court's
supervisory orders, vacating decisions on both sides of the
issue, directed the lower courts to reconsider the decisions in
light of Glasper. We read the two directives to mean that we
should not look to the holding in Glasper to control our decision
but we may look to the reasoning in Glasper to determine whether
it nonetheless applies to the 2007 version of Rule 431(b). We
find the reasoning in Glasper to apply with equal force here.
No Fundamental Right Involved
The supreme court in Glasper noted its traditional
"reluctance to hold that automatic reversal was required for a
violation of a 'right' conferred upon defendants by a rule of
[the supreme] court." Glasper, 234 Ill. 2d at 197, quoting
People v. Daniels, 172 Ill. 2d 154, 165, 665 N.E.2d 1221 (1996).
It observed the Supreme Court of the United States has recognized
errors as " 'subject to automatic reversal *** only in a "very
limited class of cases." ' " Glasper, 234 Ill. 2d at 198,
quoting Neder v. United States, 527 U.S. 1, 8, 144 L. Ed. 2d 35,
46, 119 S. Ct. 1827, 1833 (1999), quoting Johnson v. United
States, 520 U.S. 461, 468-69, 137 L. Ed. 2d 718, 728, 117 S. Ct.
1544, 1549-50 (1997). The Illinois Supreme Court observed that
the trial court's error in Glasper, to follow long-established
precedent and the clear language of Rule 431(b), did not "involve
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No. 1-08-1370
a fundamental right, or even a constitutional protection."
Glasper, 234 Ill. 2d at 193. Because the error involving the
1997 version of Rule 431(b) did not involve a fundamental right
or constitutional protection, the supreme court examined the
legal grounding for defendant Glasper's claim that the error
should give rise to a presumption of prejudice.
While noting that in a different case a violation of Rule
431(b)(4) might constitute reversible error, the supreme court
determined that "the trial court's error [in Glasper] was
harmless beyond a reasonable doubt." Glasper, 234 Ill. 2d at 203
(noting "several federal appellate courts" have determined that
Zehr-type jury instruction errors "may be deemed harmless where
the evidence is overwhelming"). In other words, a clear
violation of the 1997 version of Rule 431(b), with or without a
timely objection, would not give rise to a presumption of
prejudice (as a second-prong plain error would). See Herron, 215
Ill. 2d at 187 (where a second-prong error is proved,
"[p]rejudice to the defendant is presumed because of the
importance of the right involved").
The Glasper court rejected the defendant's claim that
prejudice should be presumed because "automatic reversal is not
even required in cases where the prosecution makes an erroneous
reference to a defendant's decision to exercise his
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No. 1-08-1370
constitutional right to remain silent in violation of Doyle v.
Ohio, 426 U.S. 610, 619, 49 L. Ed. 2d 91, 98, 96 S. Ct. 2240,
2245 (1976)." Glasper, 234 Ill. 2d at 198. It would be
incongruous to require automatic reversal for a judge's failure
to ascertain a juror's understanding and acceptance that a
"defendant's failure to testify cannot be held against him or
her" when it has repeatedly been held that a violation of that
same constitutional right by a prosecutor in the course of a
trial is subject to harmless-error analysis, thus precluding
automatic reversal. Glasper, 234 Ill. 2d at 198, citing People
v. Dameron, 196 Ill. 2d 156, 164-66, 751 N.E.2d 1111 (2001). To
find otherwise would result in anomalous outcomes, granting
automatic reversal when a jury is not informed of the principle,
but rejecting automatic reversal when the principle itself is
violated during the course of a trial. Glasper, 234 Ill. 2d at
198.
An automatic reversal for a violation of the 1997 version of
Rule 431(b) would also engender tension with well-established
case law that juries are presumed to act as instructed:
"We reject the idea that the trial court's
failure to conduct Rule 431(b)(4) questioning
makes it inevitable that the jury was biased,
particularly when the record before us
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No. 1-08-1370
demonstrates that the jurors in this case
were both admonished and instructed against
forming an adverse inference against
defendant based on his decision not to
testify. To do so would require us to
presume that citizens sworn as jurors ignore
the law and the jury instructions given to
them. This notion is contrary to our
precedent which instructs us to make the
opposite presumption." Glasper, 234 Ill. 2d
at 201, citing People v. Taylor, 166 Ill. 2d
414, 438, 655 N.E.2d 901 (1995) ("The jury is
presumed to follow the instructions that the
court gives it").
Given the reasoning of the supreme court in Glasper, we are
persuaded that its analysis applies with equal force against a
presumption-of-prejudice finding that a second-prong plain error
would trigger in this case. Critical to our holding is the
defendant's failure to marshal a persuasive reason that the 2007
amendment to Rule 431(b), imposing a sua sponte duty on the
circuit court, makes full compliance with the rule indispensable
to a fair trial for him, as he argues for a second-prong plain
error, but the trial judge's erroneous denial of the defendant's
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No. 1-08-1370
request that a specific Zehr question be asked of the venire was
not indispensable to a fair trial for defendant Glasper. As we
see it, the change to Rule 431(b) in the 2007 amendment did not
alter the right in question: it remains neither "a fundamental
right, [nor] even a constitutional protection." Glasper, 234
Ill. 2d at 193. In the absence of a cogent reason to find the
instant defendant's situation substantively different from the
situation of defendant Glasper, we are persuaded that the supreme
court's reasoning in Glasper applies to the 2007 version of Rule
431(b), which means its violation does not give rise to a
presumption of prejudice.
Consistent with the First District cases that reject a
violation of Rule 431(b) as a second-prong plain error--
Magallanes, No. 1-07-2826; Hammonds, No. 1-08-0194--the error
committed by the trial judge in this case did not trigger
automatic reversal.
CONCLUSION
The trial judge violated Supreme Court Rule 431(b) when he
did not inform the prospective jurors, either individually or in
a group, about each Zehr principle followed by a timely
opportunity to respond to specific questions concerning their
acceptance and understanding of the principles set out in the
rule. The error, however, does not involve a fundamental right
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No. 1-08-1370
or constitutional protection, such that prejudice is presumed
upon proof of the error under the second prong of the plain error
doctrine. Because the defendant does not contend the error by
the trial judge was plain error under the first prong, the error
concerning the trial judge's failure to adhere to Rule 431(b) is
forfeited.
Affirmed.
PATTI, J., concurs.
Hall, P.J., dissents.
PRESIDING JUSTICE HALL dissenting:
I agree with the majority's conclusion that the trial court
violated Supreme Court Rule 431(b) (Official Reports Advanced
Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007). I
disagree, however, with the majority's finding that the error
does not warrant reversal under the second prong of the plain-
error analysis.
I believe that word deletions in the 2007 amendment to Rule
431(b) alter our analysis from that of People v. Glasper, 234
Ill. 2d 173, 917 N.E.2d 401 (2009). In Glasper, the rule at
issue was the 1997 version of Rule 431(b), which required trial
courts to question prospective jurors about the Zehr principles
only if requested to do so by defense counsel. Glasper, 234 Ill.
2d at 187.
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No. 1-08-1370
The 1997 version of Rule 431(b) actually represented a
compromise. See People v. Alexander, 396 Ill. App. 3d 563, 580,
919 N.E.2d 1016 (2009) (McDade, J., concurring in part and
dissenting in part). The Supreme Court Rules Committee initially
recommended that trial courts be required to question prospective
jurors on each of the four Zehr principles. Alexander, 396 Ill.
App. 3d at 580 (McDade, J., concurring in part and dissenting in
part); Glasper, 234 Ill. 2d at 187. The supreme court rejected
the recommendation and instead added subsection (b), requiring
trial courts to undertake such questioning only if requested by
defendant. Alexander, 396 Ill. App. 3d at 580 (McDade, J.,
concurring in part and dissenting in part); see also Glasper, 234
Ill. 2d at 200 ("As previously stated, when crafting the version
of Rule 431(b) applicable here, this court had the opportunity to
mandate Zehr questioning in every case, but chose not to.
Instead, this court made the right to Zehr questioning
permissive").
In 2007, the supreme court amended Rule 431(b), this time
adopting the procedure it had rejected 10 years earlier.
Alexander, 396 Ill. App. 3d at 580 (McDade, J., concurring in
part and dissenting in part). The 2007 amendment deleted the
words: "If requested by the defendant." Official Reports Advanced
Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007). The
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No. 1-08-1370
deletion had the effect of imposing an affirmative sua sponte
duty on trial courts to question prospective jurors about the
Zehr principles, even absent a request by defendant. See People
v. Graham, 393 Ill. App. 3d 268, 273, 913 N.E.2d 99 (2009).
Rules of statutory construction apply equally to the
interpretation of supreme court rules. People v. Roberts, 214
Ill. 2d 106, 116, 824 N.E.2d 250 (2005). Every amendment to a
rule is presumed to have a purpose, and a court must consider the
language of the amendment in light of the need for the amendment
and the purpose it serves. People v. Allen, 313 Ill. App. 3d 842,
846, 730 N.E.2d 1216 (2000).
In amending Rule 431(b), by deleting the words: "If
requested by the defendant," our supreme court evidently
determined that the Zehr principles are so integral to the
selection of an impartial jury, and thus a fair trial, that trial
courts should be required to raise them sua sponte even if not
requested to do so by defense counsel. The majority's
interpretation of the 2007 version of Rule 431(b) renders
meaningless the deletion of the words: "If requested by the
defendant."
In light of the mandatory language of the 2007 amended
version of Rule 431(b), I believe that the trial court's failure
to fully comply with the rule denied defendant a fair trial and
22
No. 1-08-1370
was so fundamental an error that reversal is required under the
second prong of the plain-error analysis.
REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
JAMES WHEELER,
Defendant-Appellant.
________________________________________________________________
No. 1-08-1370
Appellate Court of Illinois
First District, First Division
Opinion Filed March 31, 2010
Corrected Opinion Filed: May 11, 2010
_________________________________________________________________
JUSTICE GARCIA delivered the opinion of the court.
PATTI, J., concurs.
HALL, P.J., dissents.
_________________________________________________________________
Appeal from the Circuit Court of Cook County
Honorable Lawrence W. Terrell, Judge Presiding
_________________________________________________________________
For DEFENDANT- Adrienne River
APPELLANT PATRICIA UNSINN, Deputy Defender
MICHAEL J. PELLETIER, State Appellate Defender
Office of the State Appellate Defender
203 N. LaSalle St., 24th Floor
Chicago, IL 60601
For PLAINTIFF- James F. Fitzgerald
23
No. 1-08-1370
APPELLEE Mary L. Boland
Brian W. Reidy
ANITA ALVAREZ, State's Attorney
County of Cook
Room 309 - Richard J. Daley Center
Chicago, Illinois 60602
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