People v. Walls

2022 IL App (1st) 200167-UNo. 1-20-0167
Order filed March 29, 2022.
Second Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 18 CR 11092
)
ZEB WALLS, ) The Honorable
) William B. Raines,
Defendant-Appellant. ) Judge Presiding.
______________________________________________________________________________
JUSTICE LAVIN delivered the judgment of the court.
Justices Howse and Cobbs concurred in the judgment.
ORDER
¶1 Held: The State proved beyond a reasonable doubt that defendant committed vehicular
invasion, where the evidence showed that defendant and codefendant entered or reached into the
victim’s vehicle by force while it was occupied and stole her phone. The trial court did not abuse
its discretion in directing the empaneling of jurors or unduly limit defendant’s use of peremptory
strikes so as to result in any prejudice. The State did not commit prosecutorial misconduct in
closing arguments. Last, the trial court did not abuse its discretion in answering the jury question
during deliberations by responding that the jury had heard the evidence and should continue to
deliberate.
No. 1-20-0167
¶2 Following a jury trial, defendant Zeb Walls was found guilty of vehicular invasion and
sentenced to 4 years in prison. On appeal, he contends the State failed to prove him guilty
beyond a reasonable doubt of vehicular invasion because the evidence did not establish he
entered the vehicle by force with the intent to take the victim’s property, and thus the State failed
to prove the elements of the crime. He also contends that the trial court abused its discretion in
using an alternate jury empaneling process that he claims effectively impaired his right to
peremptory challenges and abused its discretion in failing to properly respond the jury’s question
posed during deliberations. Last, defendant contends the State committed prosecutorial
misconduct in closing arguments by misstating the law of accountability and definition of force.
We affirm.
¶3 BACKGROUND
¶4 Defendant was arrested and charged with vehicular invasion after he and codefendant
Dionte Young stole a cell phone from the car of Shirley Moncada, a driver for the ride sharing
company, LYFT, while she was at a red light near the Chicago Loop. Young entered a guilty
plea and was sentenced to four years in prison, while defendant chose to proceed to trial. The
jury selection and empaneling process, which defendant also challenges, will be discussed in
further depth in our analysis section. While the State maintained that defendant and Young acted
with a common intent and criminal design to steal Moncada’s phone, defendant maintained that
he was an innocent party and Young initiated the entire incident without his knowledge,
participation, or consent.
¶5 The State’s evidence at trial revealed that around noon on July 8, 2018, Moncada, whose
first language is Spanish, was driving southbound to the Art Institute on Michigan Avenue with
two rideshare passengers, an older couple, in her backseat. As she stopped at a red light on Lake
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Street, a man, later identified as Young, opened her unlocked front passenger door (the seat
wasn’t occupied), and asked her for $20. He made a face like he was starving while asking again
for the money. Moncada, who felt nervous, repeatedly asked the man to close the door, but he
refused and kept asking for the money. Meanwhile, defendant opened the unlocked driver’s-side
door and held a blue flier about five inches from Moncada’s face. After placing the flier in her
face, defendant did not reach further inside the vehicle or “place his body inside the door after he
opened it.” At this point, Moncada became afraid. She tried to close her door, but she could not
because defendant was holding it open. Moncada briefly struggled with defendant in an effort to
close the door before Young reached into the car and took Moncada’s iPhone X, which was
mounted to the windshield. The two offenders then fled north on Michigan Avenue, and
Moncada pulled her door closed.
¶6 In describing the interaction, Moncada testified that when defendant showed her the flier,
“he was a distraction to the other guy who took the phone.” She also testified that when
defendant opened the door, she was “trying to hold the door, but *** I didn’t *** fight with him
for so long because the other guy took the phone from the holder.”
¶7 Darryl Bradford, age 64, was the rideshare passenger in the back passenger seat and
testified to a similar occurrence as Moncada, only he described defendant as having “leaned into
the car.” He called police shortly after the incident, and the audio of the 911 call was admitted
and published at trial.
¶8 Chicago Police Officer Ashoor Hoyou testified that he was working near the area of the
offense covertly on foot and in plain clothes so as to catch robberies in progress. Around noon on
the day in question, he heard sirens from a police vehicle heading east on Lake Street and then
observed defendant and Young running westbound on Wacker Place and then southbound on
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Wabash Avenue towards Officer Hoyou. They ran close together and looked behind their backs
as if someone was chasing them. As they turned into an alley, Officer Hoyou saw Young hand
defendant a phone, but he then lost sight of the two when they crossed State Street.
¶9 Chicago Police Officer Mathew Dorn testified he received a radio notification that there
was a foot chase in progress and that two teens were fleeing westbound on Wacker Drive.
Officer Dorn subsequently observed defendant and Young on Lower Wacker. As Officer Dorn
approached defendant, who was sweating and breathing heavily, defendant asked, “What did I
do, Officer?” and then fell to the ground. Officer Dorn placed defendant in handcuffs, stood him
up, and then noticed an iPhone underneath him, which Officer Dorn recovered. Later, he also
recovered two blue flyers, for the “Stoney Island Junior Bulls Youth Group,” from inside
defendant’s pant leg. During a subsequent show-up at the scene, Moncada identified Young as
the man who took her phone and defendant as the man who opened her door and presented the
flyer. Moncada retrieved her phone and unlocked it with her passcode in front of the officers.
Bradford identified defendant as one of the men who invaded Moncada’s car. Officer Dorn’s
body camera was admitted into evidence and published to the jury.
¶ 10 Chicago Police Detective William Heneghan testified that he interviewed defendant
following his arrest and the issuance of Miranda warnings. Detective Heneghan told defendant
that he had been accused of “being part of a team that stole a phone from a vehicle.” Appearing
remorseful, defendant responded that was “exactly what happened.” He and Young took the train
downtown and defendant walked up to a vehicle pretending to be sick while also requesting a
charitable donation with the flyer. Defendant explained this was the first time he had done this,
although he admitted to often selling phones on the South Side at 61st or 63rd Street.
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¶ 11 Following this evidence, the State rested, and defendant moved for a directed verdict.
Defense counsel argued the evidence did not support that defendant entered the vehicle or that
Young took Moncada’s phone by force. The defense also argued defendant was not guilty under
the theory of accountability. The State responded that defendant was accountable for Young’s
actions and had himself placed his hand and body into the interior of the car by force and tugged
on the door. Defendant did this while it was occupied and with the intent to commit a theft, as he
admitted to. Given those facts, the State asked the court to deny defendant’s motion, which the
court did.
¶ 12 Defendant, age 19, then testified on his own behalf. Defendant’s direct testimony and
cross-examination revealed that on the day in question, Young had called him around 10 a.m.
asking if he wanted to make some money, and defendant said yes. Defendant described Young as
an “older guy” from the neighborhood, although it was established that Young was only one year
older than defendant and they had known each other about three years. Defendant and Young
then met at the 63rd station, and while on the train, Young explained they would hustle money
by using flyers for the Junior Bulls charity and asking people for donations, although they did
not bring any type of container to collect the money. Defendant also acknowledged he was not a
member of that organization and no such organization existed. Once downtown, they asked for
donations for some 30 minutes without success. Defendant then noticed Moncada’s car on
Michigan Avenue. He walked over, placed the flyer “to her window,” and asked Moncada for a
donation of $20 for something to eat. Young meanwhile was already at the window speaking to
the two backseat passengers. While defendant testified he “cracked” the car door, he denied
trying to hold onto the door thereafter. He denied placing his hand, the flyer, or any part of his
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No. 1-20-0167
body inside the car. Yet, on cross-examination, defendant acknowledged he opened the driver’s
side door and put the flier in Moncada’s face.
¶ 13 Defendant testified that as the driver denied his request for $20, Young suddenly started
running, so he did too. When he caught up to Young, Young handed him a “piece of paper” with
the phone inside, although defendant suggested he did not know the paper contained the phone.
They eventually stopped running at Lower Wacker. On cross, defendant stated that Young did
not hand him the phone until they arrived underground and did so because Young “didn’t want to
take the blame” and defendant was younger. Defendant denied seeing Young take the phone,
knowing Young was going to take the phone, or discussing taking a phone with Young at any
point between the train and their interchange at the car. Defendant later urged Young to give the
phone back but was unsuccessful and stated, “I’m not with you, we can go our separate ways.”
While Young then ran off, defendant stayed and was arrested. He acknowledged speaking with
Detective Heneghan but denied his admissions.
¶ 14 In closing, the State argued defendant and Young acted as “teammates” in committing the
vehicular invasion since they approached either side of the vehicle and each entered the vehicle,
with defendant doing so by force. While defendant distracted Moncada, Young then stole the
phone, and they ran from the scene “like teammates.” The State thereby drew an analogy
between their teamwork and that of basketball champions. Defendant denied any such criminal
intent or common design, instead arguing that he proceeded downtown intending only to collect
charitable donations, and it was Young who was solely responsible for the crime.
¶ 15 The jury deliberated for almost six and a half hours and asked several questions, which
we discuss later in our analysis. Ultimately, the jury found defendant guilty of vehicular
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invasion. Defendant filed a motion for a new trial, which was denied, and he was sentenced to
four years in prison. This appeal followed.1
¶ 16 ANALYSIS
¶ 17 Sufficiency of the Evidence
¶ 18 Defendant first contends the State failed to prove him guilty beyond a reasonable doubt
of all the elements of vehicular invasion. Because defendant challenges inferences flowing from
disputed facts and the credibility of witnesses, we reject his request in his opening brief to review
this case de novo and instead apply the familiar reasonable doubt standard. Cf. In re Ryan B., 212
Ill. 2d 226, 231 (2004) (applying de novo review to a sufficiency of the evidence challenge to
determine if uncontested facts satisfied the statutory elements of the offense). That is, when
considering a challenge to a criminal conviction based upon the sufficiency of the evidence, we
must determine whether, after viewing the evidence in a light most favorable to the State, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. People v. Sutherland, 223 Ill. 2d 187, 242 (2006). In that sense, our function is not to retry
the defendant or substitute our judgment for that of the trier of fact. Id. Rather, the trier of fact
remains responsible for making determinations regarding the credibility of witnesses, the weight
to be given their testimony, and the reasonable inferences drawn from the evidence. People v.
Wright, 2017 IL 119561, ¶ 70. A conviction will not be set aside on appeal unless the evidence is
1
We note that defendant’s notice of appeal incorrectly states that the judgment from which he
appealed was issued on December 5, 2019. Instead, the record shows the final judgment of conviction
issued on December 11, 2019. However, the notice of appeal was filed within the requisite 30-day period
(on January 3, 2020). See Ill. S. Ct. R. 303 (eff. July 1, 2017). When considered as a whole and liberally
construed, the notice of appeal adequately identifies the offense, sentence, complained-of-judgment, and
informs the State of the nature of the appeal. See People v. Lewis, 234 Ill.2d 32, 39 (2009). We therefore
have jurisdiction. See id.-7-
No. 1-20-0167
so unreasonable, improbable, or unsatisfactory that there remains a reasonable doubt of the
defendant’s guilt. Id.¶ 19 To prove defendant guilty of vehicular invasion in this case, the State was required to
establish that defendant, or one for whom he was legally responsible, “knowingly, by force and
without lawful justification” entered or reached into the interior of Moncada’s vehicle while it
was occupied “with the intent to commit” a theft or felony therein. 720 ILCS 5/18-6 (West
2018); 720 ILCS 5/5-2 (West 2018). It’s clear that the language “by force and without lawful
justification” refers to the manner in which the person charged with this offense “enters or
reaches into the interior of a motor vehicle,” and the action by force need not be carried out
against a person, although clearly one or more persons must be present in the vehicle for the
statute to apply. See 720 ILCS 5/18-6 (West 2018); People v. McDaniel, 2015 IL App (1st)
132679-U, ¶ 32; see also People v. McClure, 218 Ill. 2d 375, 381-82 (2006) (noting, the best
evidence of legislative intent is the plain and ordinary language of the statute).
¶ 20 However, the entry or act of reaching inside the vehicle, the force used to effect it, and
the theft or felony committed therein need not be contemporaneous, so long as there is some
concurrence between the events. See People v. Isunza, 396 Ill. App. 3d 127, 129-32 (2009)
(finding defendant accountable for vehicular invasion, where his codefendant reached into the
victim’s open car window and punched her twice in the head, thus satisfying the element of
“using force to reach into a vehicle” to commit a felony, aggravated battery); cf. People v.
Robinson, 206 Ill. App. 3d 1046, 1053 (1990) (noting that for attempted robbery, the “force or
threatened force need not transpire before or during the time the property is taken; the force may
be used as part of a series of events constituting a single incident.”); People v. Aguilar, 286 Ill.
App. 3d 493, 498 (1997) (holding similarly, only as to vehicular hijacking).
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¶ 21 In addition to establishing the elements of the offense, the State also had to demonstrate
defendant was accountable. See 720 ILCS 5/5-2(c) (West 2018) (a person is legally accountable
for the conduct of another when “either before or during the commission of an offense, and with
the intent to promote or facilitate that commission, he or she solicits, aids, abets, agrees, or
attempts to aid that other person in the planning or commission of the offense.”). That is, the
State had to show evidence that defendant either shared the criminal intent of the principal,
Young, or there was a common criminal design with Young to commit vehicular invasion.2 720
ILCS 5/18-6 (West 2018); 720 ILCS 5/5-2 (West 2018); see People v. Fernandez, 2014 IL
115527, ¶ 13. Under the common design rule, where two or more persons engage in a common
criminal design or agreement, any acts in furtherance committed by one party are considered the
acts of all parties, and all are equally responsible for the consequences of those further acts.
People v. Perez, 189 Ill. 2d 254, 267 (2000). Evidence that a defendant voluntarily attached
himself to a group bent on illegal acts with knowledge of its design supports an inference that he
shared the common purpose and will sustain his conviction for an offense committed by another.
Fernandez, 2014 IL 115527, ¶ 13. In addition, proof that a defendant was present during the
offense, that he fled from the scene, that he maintained close ties with his companions after the
crime, and that he failed to report the crime are all factors that the trier of fact may consider in
determining the defendant’s legal accountability. Perez, 189 Ill. 2d at 267.
¶ 22 Defendant now contends the State failed to prove that he entered or reached into
Moncada’s unlocked vehicle by force with the intent to commit a theft therein. He characterizes
2
Defendant maintained during oral arguments that he declined to challenge the sufficiency of the
evidence as to accountability. However, defendant essentially raises a sufficiency of the evidence
challenge to accountability, only in the context his claim against the State’s closing arguments in this
case. For that reason, we have chosen to address the matter of accountability here, where it properly
belongs.
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No. 1-20-0167
his actions as a mere distraction while Young snatched the phone. He likewise maintains that
Young did not use any force in entering or reaching into the vehicle, and therefore, the evidence
was insufficient to establish the offense.
¶ 23 Cases interpreting the vehicular invasion statute, which does not expressly define “force,”
have interpreted the term to mean, “the use of force or violence” or “power, violence,
compulsion, or constraint exerted upon or against a person or thing.” People v. Isunza, 396 Ill.
App. 3d 127, 131-32 (2009); see also In re Thomas T., 2016 IL App (1st) 161501, ¶ 14 (same).
“Force is additionally defined as ‘[p]ower dynamically considered, that is, in motion or action;
constraining power, compulsion; strength directed to an end.’ ” Isunza, 396 Ill. App. 3d at 131,
citing Black’s Law Dictionary 644 (6th ed. 1990). Whether a car window is open or a door is
unlocked is not dispositive as to whether force was used when the defendant reached into or
entered the vehicle. See id.
¶ 24 Here, viewing the evidence in a light most favorable to the State, as we must, we cannot
say it was so unreasonable, improbable, or unsatisfactory as to raise a reasonable doubt of
defendant’s guilt, where it showed that defendant and Young, while working in tandem, entered
and reached into Moncada’s vehicle by force with the intent to steal her phone. While Young
opened Moncada’s unlocked front passenger door, defendant then entered and reached into the
unlocked driver-side door by placing his flyer about 5 inches from Moncada’s face. Moncada
became afraid and attempted to close her door but could not because defendant was holding it
open. Moncada and defendant briefly struggled over the door before Young reached into the car
and took Moncada’s iPhone X. These facts show that defendant used constraining power,
compulsion, and strength toward a specific end in holding Moncada’s door open while Young,
for whom defendant was accountable, stole the phone. Defendant thus facilitated Young in
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No. 1-20-0167
stealing the phone. Cf. People v. Johnson, 2014 IL App (1st) 122459-B, ¶ 160 (noting that “in
accountability cases based on common design, a defendant is accountable where he intentionally
sets out to promote or facilitate the commission of a crime[.]”).
¶ 25 Further evidence that defendant shared the criminal intent of Young, or alternatively, that
they shared a common criminal design included their planned jaunt downtown via train for the
admitted purpose of stealing phones. Defendant expressly confessed to Detective Heneghan that
he was part of a team that stole a phone that day, and he sold phones on the South Side.
Additional evidence supporting accountability included the fact that there was no charitable
group that existed as advertised by the flyer and no container for defendant and Young’s claimed
panhandling; defendant and Young’s teamwork in surrounding Moncada’s vehicle; their
subsequent flight; and Young’s handing off of the phone to defendant during their flight. See
People v. Mullen, 313 Ill. App. 3d 718, 725-26 (2000). Also, when they were apprehended by
police a short while later, defendant fell to the ground in an apparent attempt to hide the phone
underneath him.
¶ 26 These facts show the two shared a common purpose in committing the vehicular invasion
and so the acts of one were the acts of both. See id.; cf. Johnson, 2014 IL App (1st) 122459-B, ¶
133 (finding insufficient evidence of accountability for murder where there was no prior intent or
advance planning by the defendant to transport the shooter, Clayton Sims, to the victim, nor
evidence of a common criminal design since the defendant did not even know Sims or that he
was armed when Sims entered the defendant’s vehicle). While defendant claimed he did not have
advanced knowledge of the phone stealing plan and claimed he did not participate in the
enterprise when it occurred or thereafter, the jury evidently did not believe him.
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¶ 27 This case is distinguishable from Thomas T., 2016 IL App (1st) 161501, on which
defendant relies. There, a taxi cab driver stopped at a light on Wacker Drive, and the respondent
approached the front passenger’s side, placing a flyer up to and pressing his face against the front
passenger window. Just as the driver told respondent to scat, a second person approached the
driver’s side door and drew the taxi driver’s attention that way. The respondent then opened the
unlocked passenger-side door and removed a pouch of money and receipts from the front seat
before running away. This court found that while the respondent exerted some authority over the
taxi by opening the unlocked door, it was done so “without a showing of strength, power, or
violence and without a threat to do so,” and as such, was insufficient to support the respondent’s
conviction of vehicular invasion. Id. ¶ 17. In so holding, the court noted the respondent “did not
seek to injure or physically struggle with” the taxi driver or “exercise constraint or compulsion
over” the driver or his taxi. Id.¶ 28 As set forth, the opposite is true in this case. Although the facts are strikingly similar to
Thomas T., the distinguishing factor here is that defendant did initiate a struggle and exercise of
constraint over Moncada and her vehicle sufficient to satisfy the definition of force. Cf. People v.
Hicks, 2015 IL App (1st) 120035, ¶ 33 (noting the physical struggle between the defendant and
victim was sufficient evidence of “force” for robbery); People v. Lewis, 285 Ill. App. 3d 653,
656 (1996) (same). The language Moncada used - noting that she didn’t “fight with [defendant]
for so long” before Young took her phone - confirms this fact. Thus, defendant’s assertion on
appeal that Moncada “did not testify that she and [defendant] struggled or had a tug of war with
the door,” is patently false. That defendant’s actions were also distracting does not diminish that
they constituted force. In so holding, we reject defendant’s attempt to always equate force with
violence, as that is contrary to the case law on which we have relied. We also reject defendant’s
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reliance on the legislative history behind the vehicular invasion statute. Not only has this
argument been rejected by case law, but we need not consult legislative history when the plain
meaning of the statute is clear. See People v. Hickman, 163 Ill. 2d 250, 261 (1994); Thomas T.,
2016 IL App (1st) 161501, ¶ 16.
¶ 29 Finally, defendant maintains that even assuming force was proven, he himself never
entered or reached into Moncada’s vehicle, an element needed to find him guilty of vehicular
invasion. Speaking of distractions, this argument’s a true red herring, as it’s undisputed that
Young did reach inside the vehicle, and we have found the evidence sufficient to establish that
defendant was accountable for Young’s actions. Notwithstanding this point, viewing the
evidence in a light most favorable to the State, it was certainly reasonable for the jury to
conclude that defendant himself entered or reached into the vehicle. Moncada testified that he
placed the flyer 5 inches from her face, and Bradford described defendant as having leaned into
the car. Defendant confuses Moncada’s testimony that he did not further reach inside the vehicle
or “place his body inside the door after he opened it” for the conclusion that he never reached
inside the vehicle or entered it.
¶ 30 Even so, a trier of fact is free to accept or reject as much or as little as it pleases of a
witness’ testimony. People v. Logan, 352 Ill. App. 3d 73, 80-81 (2004). The trier of fact could
have believed Moncada and Bradford’s testimony that defendant reached into the vehicle even if
Moncada also provided some contradictory facts. Moreover, the trier of fact remains responsible
for making determinations regarding the credibility of witnesses, the weight to be given their
testimony, and the reasonable inferences to be drawn from the evidence. People v. Wright, 2017
IL 119561, ¶ 70. We thus decline defendant’s invitation to reweigh the evidence or overtake the
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trier of fact. For the foregoing reasons, we conclude the evidence was sufficient to sustain
defendant’s conviction beyond a reasonable doubt.
¶ 31 Jury Selection
¶ 32 Defendant next contends the jury selection procedure impaired his right to peremptory
challenges. Defendant specifically argues that the trial court failed to provide timely notice of its
jury selection procedure, precluding him from adequately questioning jurors. He also maintains
that because he was required to exercise his challenges contemporaneously with the State, the
number of those challenges was effectively reduced. Defendant asks that we reverse and remand
the case.
¶ 33 As to this issue, the following facts are relevant. During voir dire, the trial court called 30
potential jurors and questioned each about their background and potential biases. Potential juror
Christopher Socha stated he had been a crime victim “[a] few times,” most recently when
someone entered his car at a light demanding money but then took off with his phone. His
apartment was also broken into. Pursuant the trial court’s questioning, Socha nonetheless stated
he could be a fair and impartial juror in spite of being a crime victim. Potential juror Virginia
Procuniar also stated that in the 1980s, she was at a stoplight in another state when someone
smashed her window and grabbed her purse from the seat. She similarly stated that she
nonetheless could be a fair and impartial juror.
¶ 34 After allowing the defense and State the opportunity to question the jury, the trial court
then outlined how the jury would be impaneled. First, the State and defense would identify in
writing, and by number and name, the jurors whom they sought to dismiss for cause and, second,
those they wished to strike peremptorily. The court stated that both the State and defense would
submit their lists at the same time. They would discuss cause first, but there was no “back
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striking.” Thus, if they struck the same potential juror, the strike would count against both
parties. The court overruled defendant’s objection to this process several times.
¶ 35 Following this and pursuant to the parties’ requests and acquiescence, the court dismissed
five jury members for cause. While the defense sought to also strike Socha and Procuniar for
cause, as they had been victims of similar crimes, the court denied this request because the jurors
had stated they could be fair and impartial. Additionally, the court denied defense counsel’s
request to question them further, noting he had that opportunity earlier and chose not to do so.
The court nonetheless stated the defense could use a peremptory strike against those individuals.
¶ 36 The State then exercised four peremptory strikes and the defense exercised seven,
including against Socha and Procuniar. Both parties challenged the same potential juror by the
name of Denise Loggins. As a result, 10 members of the potential jurors were challenged in total.
The first 12 members of the venire who remained after the peremptory strikes thus became the
jury. The defense requested that each party exercise an additional peremptory strike because they
had both stricken Loggins, but the court denied this request. The parties moved on to selecting
alternate jurors, and the defense exercised the one additional peremptory strike available against
a potential alternate. The two remaining members of the venire were then selected as alternate
jurors.
¶ 37 As set forth, defendant now challenges the aforementioned jury selection and empaneling
process. We first observe that the purpose of voir dire is to assure the selection of an impartial
panel of jurors free from prejudice or bias and provide counsel an intelligent basis on which to
exercise any challenges. People v. Metcalfe, 202 Ill. 2d 544, 552 (2002). The trial court, which
has the responsibility of initiating and conducting voir dire examination, should always exercise
its discretion in a manner consistent with those goals. Id.; People v. Mabry, 398 Ill. App. 3d 745,
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754 (2010). “[T]he test for evaluating the court’s exercise of discretion is whether the means
used to test impartiality have created a reasonable assurance that prejudice would be discovered
if present.” People v. Peeples, 155 Ill. 2d 422, 459 (1993).
¶ 38 When impaneling a jury after voir dire in criminal cases, the State and defense are to
“pass upon and accept the jury in panels of four,” unless the court in its discretion “directs
otherwise,” and alternates are passed on separately. Ill. S Ct R 434(a) (eff. Feb. 6, 2013). During
this process, prospective jurors may be challenged for cause or peremptorily. People v. Bowens,
407 Ill. App. 3d 1094, 1098 (2011). A challenge for cause is supported by a specific reason, like
bias or prejudice, which disqualifies that potential juror; such challenges are limitless and left to
the discretion of the trial court. Id. A peremptory challenge, on the other hand, need not be
supported by any reason, and Supreme Court Rule 434 (eff. Feb. 6, 2013) allows defendants in a
criminal case who are facing imprisonment only seven such challenges (and the State the same).
Id. “After the jury is impaneled and sworn the court may direct the selection of alternate jurors,
who shall take the same oath as the regular jurors. Each party shall have one additional
peremptory challenge for each alternate juror.” Ill. S Ct R 434(e) (eff. Feb. 6, 2013).
¶ 39 Thus, Rule 434(a) expressly grants a trial court the discretion to alter the traditional
procedure for empaneling juries so long as the parties have adequate notice of the system to be
used and the method does not unduly restrict the use of peremptory challenges. People v.
McCormick, 328 Ill. App. 3d 378, 382 (2002), citing People v. Moss, 108 Ill. 2d 270, 275 (1985).
The right to peremptory challenges is one of the most important rights granted to an accused
because it eliminates “extremes of partiality on both sides” and assures the parties that the case
will be decided on the basis of evidence placed before the jurors. People v. Daniels, 172 Ill. 2d
154, 165 (1996); see also McCormick, 328 Ill. App. 3d at 382. Its denial or impairment is
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reversible error without a showing of prejudice. Id. Significantly, however, the right to
peremptory challenges is not denied or impaired if the procedure affords both parties a fair
opportunity to detect bias or hostility and to excuse any objectionable venire member. Daniels,
172 Ill. 2d at 165; McCormick, 328 Ill. App. 3d at 382. Whether this right has been impaired
depends on the specific facts of each case. See Daniels, 172 Ill. 2d at 166.
¶ 40 Here, rather than conducting the traditional four-by-four empaneling process, the court
chose to present the parties with all 30 potential jurors and allow the State and defense to identify
which members to strike, with the caveat that they could potentially strike the same juror. As set
forth, Rule 434 expressly permits the trial court to use a different procedure. Defendant,
however, argues the trial court abused its discretion by providing notice of this alternate process
only after the venire was questioned. He maintains this “lack of notice” caused him to miss an
opportunity to further question Socha after unsuccessfully moving to strike him for cause and to
lose a peremptory strike, since both parties struck the same juror. For the reasons to follow, we
find defendant’s rather convoluted claim holds no water.
¶ 41 First, in support of his claim as to notice, defendant relies on Moss, which similarly dealt
with whether a trial court’s use of an alternate empaneling procedure impaired the defendant’s
right to peremptory challenges. In holding that there was no such impairment, Moss observed
that the trial court expressly notified the parties of the alternate procedure before initiating voir
dire. However, Moss did not hold that such notification is required before initiating voir dire, as
defendant suggests, and defendant has not cited any other case in support of his claim. See Ill. S.
Ct. R. 341(h)(7) (eff. Oct. 1, 2020). Here, we do not believe that the trial court’s practice of
informing the parties about the empaneling procedure after questioning the venire limited their
ability to detect juror bias or hostility, which is the key factor according to Moss.
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¶ 42 Significantly, defense counsel had ample opportunity to question Socha during voir dire
about his crime-victim status but chose not to do so. In fact, during voir dire the only question
defense counsel asked jurors was whether they actually lived inside the city. Defendant has not
identified how knowledge of the court’s alternate empaneling procedure would have changed
counsel’s practices in this case. Defendant also does not argue on appeal that the trial court
abused its discretion in conducting the voir dire or in refusing to dismiss Socha for cause. This is
likely because Socha stated he could be fair and impartial in spite of his crime-victim status, and
the trial court’s determination in that regard certainly was not unreasonable. See People v.
Williams, 173 Ill. 2d 48, 67 (1996), citations omitted (noting, the trial court is in “the best
position to observe the potential juror’s demeanor and ascertain the meaning of his or her
remarks.”); People v. Becker, 239 Ill. 2d 215, 234 (2010) (noting, a trial court abuses its
discretion where its decision is arbitrary, fanciful or unreasonable or where no reasonable person
would agree with it). Thus, defendant’s argument that he “was forced to use peremptory strikes
on jurors he sought to have dismissed for cause” is specious.
¶ 43 Second, even assuming this was error on the trial court’s part, the failure to remove a
juror for cause is grounds for reversal only if the defense has exercised all of its peremptory
challenges and the objectionable juror was allowed to sit on the jury. People v. Pendleton, 279
Ill. App. 3d 669, 675 (1996). It has been held that “defendants fail to establish prejudice where
they have not indicated that they were forced to accept an objectionable juror, thereby denying
the trial court an opportunity to cure the alleged error.” Id. at 676. As stated, here, defendant used
his sixth peremptory challenge to strike Socha and his seventh to strike Procuniar. At no point
has defendant argued he was forced to accept an objectionable juror after exhausting all his
peremptory challenges. Likewise, defendant’s argument that he was effectively prohibited from
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using his peremptory strikes fails where he cannot show he had to accept an objectionable juror.
See Moss, 108 Ill. 2d at 276 (rejecting the defendant’s claim that his right to peremptory
challenges was impaired, where there was nothing to indicate bias or prejudice on the part of the
jurors). In short, defendant cannot demonstrate and does not claim that he was deprived of an
impartial jury. See id. at 675-76; see also McCormick, 328 Ill. App. 3d at 383 (finding no
prejudice where the trial court allowed challenges and there was no indication that the defendant
was precluded from removing an objectionable venire member).
¶ 44 As the State notes, in McCormick, 328 Ill. App. 3d at 383, this court advised that if
employing an alternative method of jury empaneling, a defendant’s peremptory right will not be
impaired if the court limits the size of the venire to the number of jurors required, plus the
authorized number of peremptory challenges, or explains how the jury ultimately will be chosen
(such as in numerical order). The court in this case did just that by limiting the venire to 30
people, which was the number of jurors and alternate jurors required (14), plus the authorized
number of peremptory challenges for both jury selection and alternate jury selection (16).
Further, the jurors were selected in numerical order, thus ensuring that the parties were
ultimately aware of who would be on the jury. Indeed, every potential juror who was not stricken
ended up serving on the jury or as an alternate. As such, defendant’s right to exercise his
peremptory challenges was not infringed, nor did the court abuse its discretion. Defendant’s
claim therefore fails.
¶ 45 Closing Argument
¶ 46 Defendant next argues that the prosecutor made inaccurate and improper remarks during
the State’s closing argument, thereby denying him a fair trial. At the outset, we note that
defendant failed to object to the issues he now raises. Objections to closing argument must be
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made at trial to be preserved for review, otherwise they are defaulted. People v. James, 2021 IL
App (1st) 180509, ¶ 38; see also People v. Naylor, 229 Ill. 2d 584, 592 (2008) (both a trial
objection and a written posttrial motion raising the issue are required). Nonetheless, defendant
argues the alleged errors fall under the plain-error exception to forfeiture, which serves as a
narrow and limited exception to procedural default. See Naylor, 229 Ill. 2d at 593. However, the
first step of plain-error review is always determining whether any error occurred as to closing
arguments. James, 2021 IL App (1st) 180509, ¶ 38.
¶ 47 It is well settled that a prosecutor is allowed a great deal of latitude in closing argument
and has the right to comment upon the evidence presented and upon reasonable inferences
arising therefrom, even if such inferences are unfavorable to the defendant. Id. ¶ 39. The
prosecutor may also respond to comments by defense counsel that clearly invite a response.
People v. Alvidrez, 2014 IL App (1st) 121740, ¶ 26. However, a prosecutor must refrain from
making improper, prejudicial comments and arguments. James, 2021 IL App (1st) 180509, ¶ 39.
Even if a prosecutor’s closing remarks are improper, they do not constitute reversible error
unless they result in substantial prejudice to the defendant, such that absent those remarks the
verdict would have been different. Id. Whether we review this matter de novo or for an abuse of
discretion, the result is the same. See Alvidrez, 2014 IL App (1st) 121740, ¶ 26 (noting the
standard is unclear). That is, viewing the remarks in the context of the entire closing argument,
as we must, we conclude there was no reversible error committed here. See People v. Nicholas,
218 Ill. 2d 104, 122 (2005).
¶ 48 Defendant specifically contends the prosecutor misstated the law of accountability and
improperly defined “force,” which confused the jury and effectively “reduced the State’s burden
of proof.” Defendant first takes issue with the State’s analogy comparing defendant’s teamwork
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with Young during the vehicular invasion to a basketball assist and championship. Here, the
prosecutor stated at the outset that “in any team sport one person doesn’t make the
championship; you need a team. Michael Jordan didn’t win the championship until he had
Scottie Pippen. Lebron James didn’t win the championship until he teamed up with Dwayne
Wade, and that’s what we have in this case.” The prosecutor explained how defendant and
Young acted as teammates in surrounding Moncada’s car, opening its doors, taking the phone,
and running away.
¶ 49 The State then identified all the necessary elements of vehicular invasion, and in
explaining the language, “ ‘or for one whose conduct he is legally responsible,’ ” the prosecutor
read the accountability instruction and law to the jury. The prosecutor drew on the basketball
analogy again stating that hypothetically, if “I’m a basketball player and I have the ball and I
pass it to someone and he scores, who scores there? The team scores. Not just me, not just him.
The team scores. That’s what we have here, Ladies and Gentlemen, so any time it says ‘or for
one whose conduct he’s legally responsible for,’ think, it can be either one of them or both of
them, it doesn’t matter. It’s like they’re one person, they’re a team.”
¶ 50 Defendant contends this was an improper analogy because, in closing, the State only
argued specific intent accountability to the jury and not common criminal design. Defendant’s
argument is belied by the record and law. The record shows the State argued both forms of
accountability to the jury after presenting the appropriate instruction, which largely reflects the
language in the statute. See Illinois Pattern Jury Instructions, Criminal, No. 5.03 (eff. October 28,
2016); 720 ILCS 5/5-2 (West 2018).3 In addition, it’s “long [been] recognized that the
3
We note there is only one accountability instruction available and it does not directly distinguish
between specific intent and common design accountability, as defendant suggests. See Ill. S. Ct. R.
341(h)(7) (eff. Oct. 1, 2020).
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underlying intent” of the accountability statute “is to incorporate the principle of the common-
design rule.” See Fernandez, 2014 IL 115527, ¶ 13. Viewing the remarks in the context of the
entire closing argument and given that prosecutors have wide latitude in closing, we conclude the
basketball analogy was perfectly reasonable. See Nicholas, 218 Ill. 2d at 122. As set forth,
defendant and Young traveled downtown with the specific intent to steal phones and, apart from
that, they clearly worked in conjunction as teammates towards a common criminal enterprise of
stealing the phone, making the acts of one the acts of both. See Perez, 189 Ill. 2d at 267.
¶ 51 Defendant’s contention that the State’s closing argument was misleading because
defendant and Young “shared a common intent to solicit money from pedestrians downtown” is
a backdoor challenge to the sufficiency of the evidence, rather than to closing argument. As such,
defendant urges this court to credit his self-serving testimony that he lacked both an intent to
steal the phone and a common criminal design. We have already disposed of this argument in our
sufficiency of the evidence analysis. We will not reweigh the evidence or replace our judgment
with that of the trier of fact. Incidentally, this argument also contradicts defendant’s earlier
claim, raised as part of his sufficiency challenge, that both defendant and Young “acted with a
design to take the phone through distraction.” Regardless, defendant’s point of contention does
not render the State’s closing improper.
¶ 52 Moreover, defense counsel effectively dispelled any possible misunderstanding by the
jury about the basketball analogy when he countered in closing, if “Dennis Rodman sucker
punches somebody, you don’t blame Michael Jordan and Scottie Pippen for that. Dennis
Rodman did that on his own accord.” The defense further argued the State had not presented
“any evidence” that defendant knew “Young was going to take that phone.” This was, after all,
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No. 1-20-0167
the very essence of argument. While the State effectively argued the basketball analogy, the
defense skillfully poked holes into that logic, thus reducing any potential prejudice.
¶ 53 Finally, defendant claims the State improperly responded in rebuttal to the
aforementioned defense argument by stating that if defendant was not “part of the plan from the
beginning,” defendant should not have run after Young stole the phone. It’s well established that
proof that a defendant fled from the scene or maintained close ties with his companions after the
crime are all factors a jury may consider in determining the defendant’s legal accountability. See
Perez, 189 Ill. 2d at 267. There was no misstatement of the law. For all these reasons, we see no
error in the State’s handling of accountability principles during closing argument.
¶ 54 Defendant further contends the prosecutor misstated the law on force. Defendant notes
that during rebuttal, the State argued that “force” did not require violence, as defense counsel
maintained. The State added, “You can forcefully open a door, you can forcefully walk through a
crowd, you can forcefully do many things, and that’s what the defendant did. He forcefully
opened Ms. Moncada’s door. This is not what his cohort did. This is what he did.” Later, the
State added, “So let’s not be mistaken, let’s not get distracted because [defendant] did himself
reach into the vehicle and he did himself use force.” Given the law as discussed and our analysis,
this was not an incorrect representation to the jury. We further note that there is no definition of
“force” in the pattern jury instruction on vehicular invasion, and defendant did not request one.
See Illinois Pattern Jury Instructions, Criminal, No. 11.93 (eff. Jan. 1, 1991). Defendant’s
argument in that specific regard therefore fails.
¶ 55 Defendant also maintains the State improperly argued in rebuttal that Young “forcefully”
stole the phone. As to Young, the prosecutor stated:
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No. 1-20-0167
“Now Dionte Young, he used a little bit more force because he went inside, he
actually put his body inside to snatch the phone from the middle of the window where it
was mounted. It’s not violent. He forcefully did so. He snatched, he grabbed, he took. All
those things are forceful. They’re synonyms for force. It does not mean violence so let’s
not be mistaken.”
¶ 56 Given that Young did not immediately leave when directed to do so by Moncada, but
instead reached into her car and took her phone, it’s at least arguable that Young’s actions could
constitute force. They could have showed power or compulsion directed to a specific end.
Regardless of whether the State’s take on those facts was accurate, the State’s main point was
that force cannot always be equated with violence, which we have found is certainly true.
Moreover, this was argument, and the jury was free to disregard the State’s interpretations, as
instructed by the trial court. See James, 2021 IL App (1st) 180509, ¶ 50 (finding that the trial
court provided the jury with curative instructions, admonishing them at opening and closing that
attorney arguments were not evidence and any statements not based on the evidence should be
disregarded). We cannot say the remarks resulted in substantial prejudice such that the verdict
would have been different absent the remarks. See James, 2021 IL App (1st) 180509, ¶ 39.
¶ 57 For the above-stated reasons, we find no error. However, even assuming any error,
defendant cannot fulfill his burden of persuasion in establishing plain error. See People v.
Thurow, 203 Ill. 2d 352, 363 (2003). Under that doctrine, the error will only be considered where
the evidence is so closely balanced that the error alone threatened to tip the scales of justice
against the defendant or the error was so serious that it affected the fairness of the trial and
challenged the integrity of the judicial process. People v. Sebby, 2017 IL 119445, ¶ 48.
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¶ 58 After viewing the entire closing argument in context, we cannot say any claimed error
was so prejudicial that it affected the integrity of the judicial process. See Nicholas, 218 Ill. 2d at
123; cf. People v. Blue, 189 Ill. 2d 99, 139-40 (2000) (ordering a new trial where the cumulative
error created a pattern of prejudice and encouraged the jury to decide the case based on emotion
rather than the evidence). Likewise, the evidence was not closely balanced. See People v.
Boston, 2018 IL App (1st) 140369, ¶¶ 98, 100. The State presented confident and competent
evidence from two eyewitnesses that defendant and his friend reached into or entered Moncada’s
vehicle by force to steal her phone and then fled the scene. Defendant and Young were both
identified, and defendant was found with the phone. Defendant effectively confessed to the
crime. Defendant’s contrary testimony that he went downtown only to seek charitable donations,
although he had no container for collecting such donations and the charitable group did not even
exist, was completely implausible. Cf. Sebby, 2017 IL 119445, ¶ 63 (finding evidence closely
balanced where each side presented plausible accounts). Defendant did not introduce any
corroborative evidence. For these reasons, defendant’s arguments as to the impropriety of the
State’s closing must fail.
¶ 59 Jury Question
¶ 60 Defendant next argues that the trial court abused its discretion when addressing the jury
question. Although a trial court must provide instruction when the jury poses an explicit question
and also attempt to clarify any specific legal question over which there is doubt or confusion, the
court may, in its discretion, refrain from doing so if the given instructions are readily
understandable and sufficiently explain the relevant law. People v. Averett, 237 Ill. 2d 1, 24
(2010). Furthermore, if the jury’s question is ambiguous and any response to the question could
require “ ‘a colloquy between the court and the jury, a further explanation of the facts, and
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perhaps an expression of the trial court’s opinion on the evidence,’ the court may refuse to
answer the question.” People v. Reid, 136 Ill. 2d 27, 39-40 (1990), citing People v. Tostado, 92
Ill. App. 3d 837, 839 (1981).
¶ 61 Here, after deliberating about three hours, the jury sent a note asking what would happen
if they couldn’t reach a unanimous decision. The trial judge, without objection, told the jury to
continue deliberating. Several hours later, the jury asked: “Does leaving the scene of the crime
be [sic] considered during the commission of an offense.” The judge noted this was a “verbatim”
note. He then read it several times and stated it did not make much sense. The judge noted his
response would be “you heard the evidence, continue to deliberate.” The State did not object.
Defendant did not object either, but requested “one second,” and a short time later, another “brief
second.” The judge asked what the defense was waiting for and then stated,
“I’m not bringing them out, I’m not going to address that issue. There’s Supreme
Court law and there’s appellate case law that I cannot direct them as to what evidence
they’ve heard, I can’t fine-tune it, I can’t clarify. That would be considered reversible
error. My response is you heard the evidence, continue to deliberate.”
Defense counsel stated, “Understood.” About an hour and twenty minutes later, the jury reached
a verdict finding defendant guilty of vehicular invasion.
¶ 62 Defendant now argues the trial court failed to address the jury’s confusion on the legal
issue of accountability. Defendant not only failed to raise a contemporaneous or posttrial
objection to the court’s response, thus forfeiting the matter, he positively acquiesced to it. See
Naylor, 229 Ill. 2d at 592 (both a trial objection and a written posttrial motion raising the issue
are required to preserve a claim of error). When a defendant acquiesces in the trial court’s
answer to a jury question, the defendant cannot later complain that the trial court’s answer was
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an abuse of discretion. Averett, 237 Ill. 2d at 23-24. While defendant argues any objection would
have fallen on “deaf ears,” thus suggesting the trial court would have declined to entertain
defendant’s objection or contrary argument, the record simply does not support defendant’s
assertion.
¶ 63 However, even if the issue were properly preserved, defendant’s argument would be
unavailing. We first observe that defendant’s reliance on People v. Dennis, 181 Ill. 2d 87 (1998),
is misplaced. There, the defendant was accused of armed robbery via accountability, and during
deliberations the jury twice asked, “When is the commission of the offense complete?” Id. at 92.
The trial court responded, “you may consider the period of time and the activities involved in
escaping to a place of safety.” Id. The supreme court in Dennis held the instruction was
erroneous because escape is not an element of armed robbery for which a defendant may be held
accountable. The court in Dennis wrote, “[a] person who forms the intent to facilitate an escape
only after the forceful taking of property has occurred can neither aid nor facilitate the conduct
which is an element of robbery.” Id. at 104.
¶ 64 Unlike in Dennis, here, the trial court did not erroneously answer the jury’s question. The
jury’s question was unclear, the jury had already received explicit instructions, and any further
answer by the court could have potentially aided the State’s case, as the trial court clearly
recognized. Although flight is certainly not an element of vehicular invasion, it is a factor the
jury may consider in determining the defendant’s legal accountability. See Perez, 189 Ill. 2d at
267; Boston, 2018 IL App (1st) 140369, ¶ 100. Additionally, the question was asked only once,
and the jury was able to proceed and reach a verdict. People v. Williams, 252 Ill. App. 3d 635,
645 (1993). Defendant’s suggestion that the jury verdict issued as a result of its confusion over
this question is purely speculative. Accordingly, the trial court’s actions were not so
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unreasonable or arbitrary as to constitute an abuse of discretion. Finally, even assuming any
error, it was not plain error given that the evidence was not closely balanced and defendant
cannot establish prejudice.
¶ 65 CONCLUSION
¶ 66 For all the aforementioned reasons, we affirm the judgment of the circuit court.
¶ 67 Affirmed.
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