People v. Anderson

FIRST DIVISION
March 29, 2010
No. 1-07-1768
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court
Plaintiff-Appellee, ) of Cook County.
)
v. ) No. 04 CR 7764
)
JAMES ANDERSON, ) Honorable
) Diane Gordon Cannon,
Defendant-Appellant. ) Judge Presiding.
JUSTICE LAMPKIN1 delivered the opinion of the court:
The amended Illinois Supreme Court Rule 431(b) went into
effect on May 1, 2007. Jury selection in the murder case against
James Anderson began three weeks later, on May 21, 2007. The
jury found defendant guilty of first degree murder and aggravated
battery with a firearm. Defendant raises several issues on
appeal, but we focus on the question of whether the trial court
1
This opinion was originally authored by Justice Warren
Wolfson. Justice Lampkin was appointed to the Illinois Appellate
Court by the Illinois Supreme Court on September 25, 2009,
replacing Justice Wolfson, retired, as a member on the panel
assigned to review this case. Justice Lampkin, along with the
other members of the panel, has reconsidered this case pursuant
to the Supreme Court’s supervisory order. People v. Anderson,
233 Ill. 2d 565, 914 N.E.2d 487 (2009).
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complied with Rule 431(b)(Official Reports Advance Sheet No. 8
(April 11, 2007), R. 431(b), eff. May 1, 2007) in conducting
voir dire and, if not, whether the defendant’s convictions should
be reversed for another trial. We reverse and remand.
FACTS
On May 3, 2003, defendant agreed to drive the codefendants,
Christopher Washington and Sheldon Smith, to a neighborhood where
the codefendants shot three individuals. Two of the victims were
injured and one died. According to defendant, the codefendants
merely asked him to drive them to obtain marijuana. Defendant
testified he did not know the codefendants intended to shoot the
victims. Defendant said he continued to follow the codefendants’
instructions as they chose their targets because he feared for
his safety. Defendant never attempted to withdraw himself from
the scene or report the offenses.
Codefendant Washington, who pled guilty to his involvement
in the offenses and was sentenced to 26 years’ imprisonment,
testified he was in a car around midnight on the date in question
looking to avenge a fellow gang member’s death. Washington did
not know the driver of the car. Washington was armed. He shot
three people, in different locations. He said he shot all the
victims, but he did not instruct the driver to slow the car in
order to do so. The police chased the car, and Washington and
the driver left it to run away. Washington was caught and
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arrested.
Although he originally named two rival gang members,
Washington eventually implicated defendant and codefendant Smith.
Washington said at trial the police forced him to name defendant
and codefendant Smith because of their criminal backgrounds.
Washington had agreed to videotape his statement. It was
introduced into evidence. At trial, he said most of the
videotaped statement was untrue. In the videotape, Washington
said he, defendant, and Smith were selected by their gang to
shoot rival gang members in exchange for drugs and money.
Defendant drove the car. Defendant and Smith were armed with
handguns and all three shot at different individuals throughout
the neighborhood. Washington said he was treated well by the
police. At trial, he testified he was “jacked” by the police.
Detective John Otto testified he and Assistant State’s
Attorney (ASA) William Merritt interviewed defendant on January
30, 2004. Otto advised defendant of his Miranda rights, which
defendant waived. Defendant admitted he drove the vehicle
involved in the shootings while Smith and Washington rode as
passengers. When Otto confronted defendant with inconsistencies
between his confession and Washington’s statement, defendant drew
a diagram of the shootings as he remembered them. Defendant said
he drove the vehicle during each shooting. Defendant never told
Otto he was threatened at gunpoint. ASA Merritt’s testimony was
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consistent with that of Detective Otto, adding defendant said he
was the driver, but not a shooter.
Defendant consented to have his confession videotaped. The
videotape was admitted as evidence. The videotaped statement was
consistent with defendant’s oral statement, adding he was in
shock after the first shooting, but he continued driving as told.
He did not say he was threatened at gunpoint.
Defendant testified he did not know Washington and Smith
were armed when he agreed to drive them to obtain marijuana.
While driving, Washington first instructed defendant to slow down
near two men standing on a corner. Washington rolled down the
window, asked the men for marijuana, then shot at them.
Defendant was shocked, but he was instructed to drive away. He
complied. On the way to the next location, Washington and Smith
told defendant to slow the car when they saw another individual.
Smith asked that individual whether he had marijuana and whether
he was a rival gang member. The individual responded no to both
questions. Smith shot him. Defendant then drove to the next
location as instructed. He was told to stop when they reached a
man in an alley. Washington asked the man about marijuana. Then
he shot him.
On cross-examination, defendant said he did not want to
continue driving the car, but he was ordered to at gunpoint.
Defendant admitted he did not include that fact in his videotaped
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statement; however, he said it to the detectives before he gave
the videotaped statement. Anderson testified he drove to the
second location as instructed because he thought he would be shot
if he disagreed. Defendant said he stopped the car during the
second shooting, but did not attempt to exit because he was
afraid. Defendant denied knowing Washington and Smith intended
to shoot the man in the alley, but admitted he drove the car
around the block to find the man again. When unsuccessful, Smith
and Washington exited the car and approached another individual.
Defendant was instructed to wait in the car and he complied.
Smith and Washington shot that individual, then told defendant to
drive away. Defendant tried to slow the car when the police
approached, but was instructed to turn on a dead-end road and
speed up. He complied and did not exit the car to run away until
instructed. Defendant later moved to Du Page County. Defendant
denied evading the police, but admitted he never reported the
offenses because he feared for his and his family’s safety.
The jury found defendant not guilty of aggravated battery
with a firearm of the first victim, but guilty of aggravated
battery with a firearm of the second victim and first degree
murder of the third victim. Both convictions were based on the
theory of accountability. Defendant was sentenced to consecutive
terms of 35 years’ imprisonment for the first degree murder count
and 10 years’ imprisonment for the aggravated battery with a
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firearm count. This timely appeal followed.
DECISION
I. Rule 431(b)
We first turn to the issue of whether the court complied
with the requirements of Rule 431(b) in conducting voir dire and,
if not, whether lack of compliance may be considered harmless
error.
Defendant did not make a Rule 431(b) objection. See People
v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124 (1988) (in order
to preserve an error for appellate review, the defendant must
object at trial and include the alleged error in a posttrial
motion). The State contends the defendant forfeited the Rule
431(b) issue by failing to make a timely objection and by
omitting the issue from his posttrial motion. We recognize, as
suggested by the defendant, a “less rigid application of the
waiver rule” is applied when the trial court’s conduct is at the
center of the claimed error. People v. Nevitt, 135 Ill. 2d 423,
455, 553 N.E.2d 368 (1990); People v. Stevens, 338 Ill. App. 3d
806, 810, 790 N.E.2d 52 (2003). We have chosen to address the
defendant’s claim that plain error occurred.
The plain error doctrine allows us to review an issue
affecting substantial rights despite forfeiture in either of two
circumstances:
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“First, where the evidence in a case is so closely
balanced that the jury’s guilty verdict may have
resulted from the error and not the evidence, a
reviewing court may consider a forfeited error in order
to preclude an argument that an innocent man was
wrongly convicted. [Citation.] Second, where the
error is so serious that defendant was denied a
substantial right, and thus a fair trial, a reviewing
court may consider a forfeited error in order to
preserve the integrity of the judicial process.”
People v. Herron, 215 Ill. 2d 167, 178-79, 830 N.E.2d
467 (2005).
It is the second Herron circumstance that we consider in
this case. Defendant claims the trial court’s failure to comply
with Rule 431(b) denied him basic guarantees for obtaining a fair
and impartial jury. The right to an impartial jury “is so
fundamental to due process that any infringement of that right
requires reversal by a reviewing court.” People v. Boston, 271
Ill. App. 3d 358, 360, 648 N.E.2d 1002 (1995).
The court conducted voir dire and empaneled the jury. The
court first told the entire group of prospective jurors:
“The charges in this case, ladies and gentlemen,
come by way of a Cook County Grand Jury indictment.
They are not any evidence of guilt against [defendant].
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He is presumed innocent of the charges and the State
has the burden of proving him guilty beyond a
reasonable doubt.”
The first panel of prospective jurors was then brought
forward. The judge said:
“As I indicated earlier, the defendant is presumed
innocent of the charges. The State has the burden of
proving the defendant guilty beyond a reasonable doubt.
The defendant is not required to prove his innocence,
nor is he required to testify or call witnesses on his
own behalf.
Should the State meet their burden of proof beyond
a reasonable doubt, is there anybody seated in the jury
box who could not or would not go into the jury room
with your fellow jurors and the law that governs this
case as I give it to you and sign a verdict form of
guilty? Anybody who could not or would not do that for
any reason?
(No audible response.)
No response. Should the State fail to meet their
burden of proof beyond a reasonable doubt, is there
anybody seated in the jury box who could not or would
not go into the jury room with your fellow jurors and
the law that governs this case as I give it to you and
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sign a verdict form of not guilty?
(No audible response.)
No response.”
Eight jury members were selected from this panel. After the
eight jury members were selected, they were sent to the jury room
and were not present for the voir dire of the remaining panels.
When the second panel of potential jurors was brought
forward, the judge said:
“Ladies and gentlemen, I wish to thank you for
your time and patience. As I indicated earlier, the
charges against the defendant come by way of a Grand
Jury indictment. They are not any evidence against the
defendant.
The defendant is presumed innocent of the charges
against him and the State has the burden of proving him
guilty beyond a reasonable doubt. He is not required
to call witnesses on his own behalf or testify on his
own behalf.
Is there anybody who has any qualms or problems
with those propositions of law?
(No audible response.)
No response. Should the State meet their burden
of proof beyond a reasonable doubt, is there anybody
seated in the jury box who could not or would not go
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into the jury room with your fellow jurors and follow
the law that governs this case as I give it to you and
sign a verdict form of guilty? Anybody who could not
or would not do that for any reason?
(No audible response.)
No response. Should the State fail to meet their
burden of proof beyond a reasonable doubt, is there
anybody seated in the jury box who could not or would
not go into the jury room with your fellow jurors and
the law that governs this case as I give it to you and
sign the verdict form of not guilty?
(No audible response.)
No response.”
Four jurors were selected to serve from this panel and one juror
was selected as an alternate.
When the court called the third panel, the judge said:
“Again, ladies and gentlemen, I wish to thank you
for your time and patience. As indicated in my opening
remarks, the defendant is presumed innocent of the
charges against him and the State has the burden of
proving him guilty beyond a reasonable doubt.
Is there anyone who has any problems or qualms
with that proposition of law?
(No audible response.)
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No response. The defendant is not required to
prove his innocence. He is not required to call
witnesses or testify on his own behalf.
If the State meets their burden of proof beyond a
reasonable doubt, is there anybody seated in the jury
box who could not or would not go into the jury room
with your fellow jurors and the law that governs this
case as I give it to you and sign a verdict form of
guilty? Anybody who would not or could not do that?
(No audible response.)
No response. If the State should fail to meet
their burden of proof beyond a reasonable doubt, is
there anybody who could not or would not follow the law
and sign a verdict form of not guilty.
(No audible response.)
No response.”
One alternate juror was selected from this panel.
The defense does not challenge the trial court’s questioning
of the second and third juror panels. We focus our attention on
the questioning of the first panel, from which eight jurors were
selected.
The canons of statutory construction apply to supreme court
rules. Robidoux v. Oliphant, 201 Ill. 2d 324, 332, 775 N.E.2d
987 (2002). Our primary goal is to ascertain and give effect to
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the intent of the drafters by relying on the plain and ordinary
language of the rule. Robidoux, 201 Ill. 2d at 332. The supreme
court has said:
“The rules of court we have promulgated 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).
Construction of supreme court rules is a question of law, which
we review de novo. Robidoux, 201 Ill. 2d at 332.
Rule 431(b), as amended effective May 1, 2007, provides:
“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.
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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.”
(Emphasis added.) Official Reports Advance Sheet No. 8
(April 11, 2007), R. 431(b), eff. May 1, 2007.
Before the 2007 amendment, the court was required to
admonish the jurors and ascertain whether they understood and
accepted the enumerated principles announced in People v. Zehr,
103 Ill. 2d 472, 469 N.E.2d 1062 (1984), “[i]f requested by the
defendant.” 177 Ill. 2d R. 431(b). Before that, in 1997, Rule
431 was amended to ensure compliance with the Zehr principles by
changing the court’s voir dire requirements from discretionary to
compulsory by amending the word “may” to “shall.” See People v.
O’Brien, 197 Ill. 2d 88, 93, 754 N.E.2d 327 (2001) (use of the
word “shall” is “construed as a clear expression of legislative
intent to impose a mandatory obligation”).
It is axiomatic that amendments to rules are designed to
serve some purpose. In re Application of the County Collector,
356 Ill. App. 3d 668, 670, 826 N.E.2d 951 (2005). We must
construe the rule consistent with the purpose of the amendments,
relying on the presumption that the supreme court intended to
change the law in 1997 and 2007. See In re Application of the
County Collector, 356 Ill. App. 3d at 670.
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The clear language of Rule 431(b) requires the court to
ensure jurors are qualified to know, understand, and accept the
enumerated principles and are provided with an opportunity to
respond. See Zehr, 103 Ill. 2d at 477. 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,
Committee Comments, at lXXiX.
When the 2007 amendment deleted the language “[i]f requested
by the defendant,” the rule charged trial courts with an
affirmative sua sponte duty to ask potential jurors whether they
understand and accept the Zehr principles in each and every case.
People v. Magallanes, No. 1-07-2826, slip op. at 13-14 (December
23, 2009), citing People v. Graham, 393 Ill. App. 3d 268, 273,
913 N.E.2d 99 (2009); People v. Arredondo, 394 Ill. App. 3d 944,
950, 916 N.E.2d 1263 (2009); People v. Madrid, 395 Ill. App. 3d
38, 46, 916 N.E.2d 1273 (2009). Moreover, the court must provide
each juror with “an opportunity to respond to” the specific Zehr
principles. We find Rule 431(b) was amended to send a clear
message to trial and appellate courts: it is the courts’
responsibility to enforce the rules as written.
The incomplete voir dire conducted in this case is the
practice the amended rule seeks to end. See 177 Ill. 2d R. 431,
Committee Comments. With regard to the first panel of
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prospective jurors, from which eight were selected, the court
provided only three of the four Zehr principles in narrative
form, not in questions. Asking the first panel members as a
group whether they would sign the appropriate verdict form if the
State had or had not met its burden of proof was a “general
question concerning the juror’s willingness to follow the law.”
177 Ill. 2d R. 431, Committee Comments, at lxxix. The court did
not adequately determine whether the majority of empaneled jurors
understood and accepted any of the four Zehr principles. The
court’s inquiry did not satisfy Rule 431(b) and constitutes
error.
On September 30, 2009, our supreme court issued a
supervisory order (People v. Anderson, 233 Ill. 2d 565, 914
N.E.2d 487 (2009)) instructing us to vacate our previously filed
opinion in this case (People v. Anderson, 389 Ill. App. 3d 1, 904
N.E.2d 1113 (2009)) and reconsider it in light of People v.
Glasper, 234 Ill. 2d 173, 917 N.E.2d 401 (2009). We have
complied.
In Glasper, the supreme court considered whether application
of harmless error was appropriate where the trial court refused
to ask venire members, as requested by the defendant, whether
they understood that the defendant’s decision not to testify
could not be held against him. Glasper, 234 Ill. 2d at 189. At
the time, the 1997 version of Rule 431(b) was in effect.
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Glasper, 234 Ill. 2d at 200. The Glasper court held, pursuant to
the facts of that case, the failure to comply with the 1997
version of Rule 431(b)(4) constituted harmless error. Glasper,
234 Ill. 2d at 200.
In doing so, the supreme court found the Rule 431(b)(4)
error in Glasper did not constitute a structural error where the
right provided by the rule was not “a fundamental right, or even
a constitutional protection.” Glasper, 234 Ill. 2d at 193, 197-
98. Rather, the supreme court emphasized that the principle
encapsulated by Rule 431(b)(4) was available only as a result of
the Supreme Court Rules. Glasper, 234 Ill. 2d at 193, 196-97.
The supreme court found it significant that, at the time of
trial, the right in question was discretionary, in that jurors
were informed of the right only if the defendant specifically
requested it. Glasper, 234 Ill. 2d at 193. The Glasper court,
therefore, concluded that the right was not “indispensable to a
fair trial.” Glasper, 234 Ill. 2d at 196.
However, the supreme court said:
“We emphasize that this holding is limited to the
version of Rule 431(b)(4) that was in effect at the
time of the instant trial, and would not necessarily
apply to subsequent versions of the rule. We also make
clear that we are not holding that a Rule 431(b)(4)
violation could never result in a reversible error.”
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Glasper, 234 Ill. 2d at 200.
The Glasper harmless error analysis is not appropriate under
the facts of this case. Here, the applicable version of Rule
431(b) was that amended in 2007. As stated, the 2007 amendment
requires that trial judges ensure all jurors know, understand,
and accept the Zehr principles, and are provided with an
opportunity to indicate their understanding and acceptance of
them. While the 1997 version was permissive (Glasper, 234 Ill.
2d at 200), the supreme court intentionally amended Rule 431(b)
in 2007 to mandate Zehr questioning for each and every defendant.
Here, the trial judge never inquired of the first panel,
from which eight jurors were selected, whether they knew,
understood, or accepted all four of the Zehr principles. The
panel was apprised of the first three principles, namely, that
defendant was presumed innocent, that the State had to prove
defendant guilty beyond a reasonable doubt, and that defendant
did not have to offer any evidence; however, the trial judge
never asked, individually or as a group, whether the jurors
understood and accepted these principles. Unlike the defendant
in Glasper, the jurors here were not merely impaneled without
asking whether they understood and accepted that defendant’s
decision whether to testify could not be used against him.
Therefore, the instant trial court not only failed to comply with
Rule 431(b)(4), but also failed to comply with Rules 431(b)(1)
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through (b)(3). There is, therefore, no way to know whether the
jurors were biased or unbiased.
The right to an impartial jury is a substantial right, or in
other words “a constitutional right” under both the United States
and Illinois Constitutions. See People v. Bean, 137 Ill. 2d 65,
81, 560 N.E.2d 258 (1990) (discussing examples of substantial
rights while analyzing whether the defendant’s absence during in
camera voir dire amounted to such). The sixth amendment provides
“[i]n all criminal prosecutions, the accused shall enjoy the
right to *** trial, by an impartial jury.” U.S. Const., amends.
VI, XIV; Ill. Const. 1970, art. I, §§8, 13. The Supreme Court
said:
“[P]art of the guarantee of a defendant’s right to an
impartial jury is an adequate voir dire to identify
unqualified jurors. [Citations.] ‘Voir dire plays a
critical function in assuring the criminal defendant
that his [constitutional] right to an impartial jury
will be honored. Without an adequate voir dire the
trial judge’s responsibility to remove prospective
jurors who will not be able impartially to follow the
court’s instructions and evaluate the evidence cannot
be fulfilled.’ [Citation.]” Morgan v. Illinois, 504
U.S. 719, 729-30, 119 L. Ed. 2d 492, 503, 112 S. Ct.
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2222, 2230 (1992) (holding that the trial court was
required, upon the defendant’s request, to question the
venire members regarding potential bias in the capital
case in order to ensure a fair trial).
And, violations of substantial rights constitute plain error.
Bean, 137 Ill. 2d at 81.
The questions set out in Rule 431(b) are “essential to the
qualifications of jurors in a criminal case.” Zehr, 103 Ill. 2d
at 477. Instructing the jury properly at the end of trial does
not address the question of whether a fair and impartial jury has
been selected. The supreme court said:
“If a juror has a prejudice against any of these basic
guarantees, an instruction given at the end of the
trial will have little curative effect.” Zehr, 103
Ill. 2d at 477.
See People v. Starks, 169 Ill. App. 3d 588, 596, 523 N.E.2d 983
(1988) (“Zehr teaches that admonitions and instructions are no
substitute for interrogation” (emphasis added)). The very act of
amending the rule to make Zehr compulsory demonstrates the
supreme court recognized that the enumerated principles are
fundamental to securing a fair and impartial jury.
We need not consider the weight of the evidence against
defendant because we have found the plain error described in the
second circumstance of the Herron test. That is, the instant
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Rule 431(b) error “is so serious that defendant was denied a
substantial right, and thus a fair trial.” Herron, 215 Ill. 2d
at 178-79. Once having said that, there is no need to inquire
into the harmfulness of the error or the measure of prejudice
incurred by the defendant. Plain error is reversible error. See
People v. Keene, 169 Ill. 2d 1, 17, 660 N.E.2d 901 (1995). There
is no need for further inquiry.
The facts of this case dictate reversal for plain error
because of the trial court’s egregious failure to comply with
Rule 431(b). We await instruction from our supreme court as to
whether reversible error occurs every time a trial court fails to
comply with any or all of Rule 431(b).
II. Remaining Contentions
Because of our disposition of the Rule 431(b) issue, we see
no need to consider defendant’s other contentions.
CONCLUSION
We reverse the judgment of the trial court and remand this
case for a new trial.
Reversed and remanded.
HALL, P.J., concurs.
GARCIA, J., dissents.
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JUSTICE GARCIA, dissenting:
In People v. Glasper, 234 Ill. 2d 173, 185, 917 N.E.2d 401
(2009), 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. Our supreme court
ruled harmless-error analysis applies. Glasper, 234 Ill. 2d at
185.
The version of Rule 431(b) at issue in Glasper was the 1997
version, which required that each of the Zehr questions be asked
of the venire only upon request of the defendant. Glasper, 234
Ill. 2d at 187. The version of Rule 431(b) at issue before us is
the 2007 version, which 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; People v. Graham, 393 Ill. App. 3d 268, 273, 913 N.E.2d 99
(2009). Just as we found the trial court violated Rule 431(b) in
Anderson I, the supreme court in Glasper 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.
The dispositive question before us now 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
violation of the rule from one where harmless error applies, such
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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"). The majority finds automatic reversal
is mandated (slip op. at 20); I cannot agree.
As our supreme court stated in Glasper:
"The error in this case does not involve a
fundamental right, or even a constitutional
protection. The error involves a right made
available only by rule of this court."
Glasper, 234 Ill. 2d 193.
The only difference between the version of Rule 431(b) that
the trial judge was required to follow in this case and the
version violated in Glasper is that the right in question is now
afforded to all defendants by virtue of the sua sponte duty
imposed upon the circuit court by the 2007 amendment. That
change, however, does not change the right in question: it
remains neither "a fundamental right, [nor] even a constitutional
protection." Glasper, 234 Ill. 2d at 193; see People v.
Alexander, No. 3-07-0915, slip op. at 18 ("We do not think that
this difference precludes application of the Glasper rationale to
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the instant case").
I acknowledge that the supreme court in Glasper directed the
lower courts not to look beyond its exact holding:
"We emphasize that this holding is
limited to the version of Rule 431(b)(4) that
was in effect at the time of the instant
trial, and would not 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 a Rule 431(b)(4)
violation could never result in reversible error." Glasper, 234
Ill. 2d at 200.
I acknowledge reasonable grounds exist, as expressed by the
majority here, 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 Glasper decision was issued in 2009,
while the court's supervisory order, vacating Anderson I,
directed we reconsider the decision in light of Glasper. I 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). I find the reasoning in
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Glasper applies with equal force here.
Critical to my change in view is the defendant's failure to
marshal a persuasive reason the 2007 amendment to Rule 431(b),
imposing a sua sponte duty on the circuit court warrants a change
in the analysis we should follow. In his supplemental brief,
allowed by this court after the supervisory order was issued, the
defendant simply restates the rule to support the outcome he
urges:
"[Q]uestioning is now mandatory in all cases
under the current version of Rule 431(b),
which was in effect at the time of Anderson's
trial. See Official Reports Advance Sheet
No. 8 (April 11, 2007), Rule 431(b), eff. May
1, 2007. As a result, compliance with this
rule is now indispensable to a fair trial,
making this precisely the sort of error that
should not be subject to harmless error
analysis."
The defendant fails to explain why the change to a sua
sponte duty on the circuit court makes it indispensable to a fair
trial for him, but the trial judge's erroneous denial of the
request that a specific Zehr question be asked of the venire was
not indispensable to a fair trial for defendant Glasper. As I
read it, the defendant's supplemental brief offers nothing more
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than what we considered in issuing our decision in Anderson I
when we did not have the benefit of the Glasper analysis.
Having reconsidered my special concurrence in Anderson I, I
am no longer convinced that the circuit court's failure to
thoroughly conduct Rule 431(b) questioning makes it inevitable
that the jury that decided the defendant's case was biased. See
Glasper, 234 Ill. 2d at 201 ("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"). I cannot agree that the
defendant is entitled to a new trial based solely on his
otherwise meritorious claim that the circuit court did not comply
with Rule 431(b), an error that does not trigger automatic
reversal as it may constitute harmless error. See People v.
Magallanes, No. 1-07-2826, slip op. at 37 (December 23, 2009)
("The holding in Glasper *** compels us to reject defendant's
argument that Rule 431(b)(4) errors are automatically
reversible").
I respectfully dissent.
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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
JAMES ANDERSON,
Defendant-Appellant.
No. 1-07-1768
Appellate Court of Illinois
First District, FIRST DIVISION
March 29, 2010
Justice Bertina E. Lampkin authored the opinion of the court:
Presiding Justice Hall concurs.
Justice Garcia dissents.
Appeal from the Circuit Court of Cook County.
The Hon. Diane Gordon Cannon, Judge Presiding.
COUNSEL FOR APPELLANT
Michael J. Pelletier, State Appellate Defender, Chicago, IL 60601
Patricia Unsinn, Deputy Defender
OF COUNSEL: Brian E. Koch
COUNSEL FOR APPELLEE
Anita Alvarez, Cook County State’s Attorney, Chicago, IL 60602
OF COUNSEL: James E. Fitzgerald, Alan J. Spellberg,
Clare Wesolik Connolly and Carol L. Gaines
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