People v. Yusuf ( 2010 )

NO. 4-08-0034
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
AHMED A. YUSUF, ) No. 06CF1876
Defendant-Appellant. )
) Honorable
) Thomas J. Difanis,
) Judge Presiding.
_________________________________________________________________
JUSTICE McCULLOUGH delivered the opinion of the court:
In October 2007, a jury convicted defendant, Ahmed A.
Yusuf, of armed robbery (720 ILCS 5/18-2(a)(2) (West 2006)). In
December 2007, the trial court sentenced him to seven years’
imprisonment. Defendant appealed, arguing the court erred in
failing to question the jurors during voir dire in compliance
with Illinois Supreme Court Rule 431(b) (Official Reports Advance
Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007)
regarding the jurors' understanding of the four basic constitu-
tional guarantees afforded criminal defendants at trial. In
November 2008, this court affirmed. People v. Yusuf, No. 4-08-
0034 (November 19, 2008) (unpublished order under Supreme Court
Rule 23).
The Supreme Court of Illinois denied defendant’s
petition for leave to appeal but issued a supervisory order
(People v. Yusuf, 233 Ill. 2d 598, 914 N.E.2d 489 (2009)
(nonprecedential supervisory order on denial of petition for
leave to appeal) (No. 107674)) directing this court to vacate our
order and to reconsider in light of People v. Glasper, 234 Ill.
2d 173, 917 N.E.2d 401 (2009). In accordance with the supreme
court’s directions, we vacated our prior judgment and reconsider
in light of Glasper to determine whether a different result is
warranted. We reverse and remand.
On November 20, 2006, the State charged defendant with
two counts of armed robbery. At trial, Sarad Chandra, a conve-
nience store clerk, testified that shortly after 10 p.m. on
November 19, 2006, a man carrying a gun and dressed in dark
clothing and a ski mask came into the store and demanded money.
Chandra opened the register, and the man took the money and ran
out of the store. The store surveillance tape was played for the
jury.
The State also presented evidence at trial establishing
that on the evening of November 19, 2006, Maokun Li left his
office and was walking to his vehicle when defendant, wearing a
black ski mask, appeared from behind a bush. Defendant produced
a gun and ordered Li to give him his wallet and cellular phone.
Defendant also demanded Li’s personal identification number for
the debit card. Li testified defendant also threatened to shoot
him. According to Li’s testimony, defendant ordered Li to lay on
the ground and not to look at him. Li called the police after
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defendant fled. The police arrested defendant shortly thereaf-
ter.
Defendant did not present any evidence at trial. After
considering the State's evidence, closing arguments, and jury
instructions, the jury acquitted defendant of the armed robbery
of Chandra but found him guilty of the armed robbery of Li. The
trial court sentenced defendant as stated.
We affirmed (People v. Yusuf, No. 4-08-0034 (November
19, 2008) (unpublished order under Supreme Court Rule 23)), and
the supreme court denied defendant’s petition for leave to appeal
but directed this court to vacate our judgment and to reconsider
in light of Glasper.
As a threshold matter, we note our prior order in this
case relied on this court’s reasoning in People v. Stump, 385
Ill. App. 3d 515, 896 N.E.2d 904 (2008). However, following its
decision in Glasper, the supreme court issued a supervisory order
therein (People v. Stump, 233 Ill. 2d 592, 914 N.E.2d 490 (2009)
(nonprecedential supervisory order on denial of petition for
leave to appeal) (No. 107508)) directing this court to vacate its
order and reconsider its decision in light of Glasper despite
Glasper's application of prior Rule 431 and Stump's application
of the amended rule.
On appeal in the instant case, defendant claims the
trial court erred where it failed to comply with the mandates of
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Supreme Court Rule 431(b). Specifically, defendant argues the
procedure used by the court failed to allow the venire an oppor-
tunity to respond to or be questioned on the Zehr principles,
i.e., it failed to comply with the directives of Rule 431(b).
See People v. Zehr, 103 Ill. 2d 472, 477-78, 469 N.E.2d 1062,
1064 (1984).
In this case, defendant’s trial counsel did not object
at the time of the trial court’s error. In addition, defendant’s
posttrial motion did not allege the court failed to comply with
Rule 431(b). As a result, the issue has been forfeited. See
People v. Hestand, 362 Ill. App. 3d 272, 279, 838 N.E.2d 318, 324
(2005). Defendant, however, argues the court's failure to comply
with Rule 431(b) constitutes plain error affecting his right to a
fair trial by an impartial jury.
A plain-error analysis applies where the defendant
fails to make a timely objection in the trial court, while a
harmless-error analysis applies where the defendant timely
objects to the error. People v. Johnson, 388 Ill. App. 3d 199,
203, 902 N.E.2d 1265, 1268 (2009) (Third District). In this
case, defendant’s trial counsel did not object at the time of the
trial court’s error. In addition, defendant’s posttrial motion
did not allege the court failed to comply with Rule 431(b).
Because defendant failed to preserve the trial court’s error, we
analyze the error under the plain-error doctrine.
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A reviewing court may disregard a defendant's forfei-
ture and review the issue under the plain-error doctrine to
determine whether reversal is required. People v. Lewis, 234
Ill. 2d 32, 42, 912 N.E.2d 1220, 1226 (2009). The plain-error
doctrine allows a reviewing court to consider forfeited error
when (1) the evidence is closely balanced or (2) the error is so
serious that it affected the fairness of the defendant's trial
and challenged the integrity of the judicial process, regardless
of the closeness of the evidence. People v. Walker, 232 Ill. 2d
113, 124, 902 N.E.2d 691, 697 (2009). Under either prong of the
plain-error analysis, the defendant has the burden of persuasion.
Lewis, 234 Ill. 2d at 43, 912 N.E.2d at 1227. Before reviewing
the issue under the plain-error doctrine, however, we must first
determine whether any error occurred. People v. Piatkowski, 225
Ill. 2d 551, 565, 870 N.E.2d 403, 411 (2007).
"The supreme court's rules are not aspirational;
rather, they have the force of law." People v. Young, 387 Ill.
App. 3d 1126, 1127, 903 N.E.2d 434, 435 (2009), citing Bright v.
Dicke, 166 Ill. 2d 204, 210, 652 N.E.2d 275, 277-78 (1995). This
court reviews de novo a trial court’s compliance with a supreme
court rule. Young, 387 Ill. App. 3d at 1127, 903 N.E.2d at 435.
In Zehr, the Supreme Court of Illinois held a trial
court erred during voir dire by refusing defense counsel's
request to ask questions about (1) the State's burden of proof,
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(2) defendant's right to not testify, and (3) the presumption of
innocence. Zehr, 103 Ill. 2d at 477, 469 N.E.2d at 1064.
The supreme court amended Rule 431(b) to assure compli-
ance with its decision in Zehr. Adopted March 21, 2007, and
effective May 1, 2007, the rule now reads as follows:
"(b) The court shall ask each potential
juror, individually or in a group, whether
that juror understands and accepts the fol-
lowing principles: (1) that the defendant is
presumed innocent of the charge(s) against
him or her; (2) that before a defendant can
be convicted the State must prove the defen-
dant guilty beyond a reasonable doubt; (3)
that the defendant is not required to offer
any evidence on his or her own behalf; and
(4) that the defendant's failure to testify
cannot be held against him or her; however,
no inquiry of a prospective juror shall be
made into the defendant's failure to testify
when the defendant objects.
The court's method of inquiry shall
provide each juror an opportunity to respond
to specific questions concerning the princi-
ples set out in this section." (Emphases
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added.) Official Reports Advance Sheet No. 8
(April 11, 2007), R. 431(b), eff. May 1,
2007.
The committee comments provide as follows:
"The new language is intended to ensure
compliance with the requirements of People v.
Zehr, 103 Ill. 2d 472[, 469 N.E.2d 1062]
(1984). It seeks to end the practice where
the judge makes a broad statement of the
applicable law followed by a general question
concerning the juror’s willingness to follow
the law." 177 Ill. 2d R. 431(b), Committee
Comments, at lxxix.
As of May 1, 2007, the plain language of Rule 431(b)
requires a trial court to (1) sua sponte question each potential
juror as to whether he understands and accepts the Zehr princi-
ples (2) in a manner that allows each juror an opportunity to
respond. As the voir dire in this case occurred in October 2007,
after the amendment became effective, the court was required to
comply with the rule as amended May 1, 2007.
At the beginning of voir dire, prior to the jurors
being sworn in, the trial court addressed the pool as follows:
"I want to go over some of those [jury]
instructions with you now so that you can
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keep them in perspective as you listen to the
testimony. The first instruction is *** that
the defendant is presumed to be innocent of
the charge[s] against him [(Rule 431(b) prin-
ciple (1))]. This presumption remains with
him throughout every stage of the trial and
during your deliberations on the verdict, and
is not overcome unless from all of the evi-
dence in this case, you are convinced beyond
a reasonable doubt that he is guilty [(Rule
431(b) principle (2))].
The State has the burden of proving the
guilt of the defendant beyond a reasonable
doubt, and this burden remains on the State
throughout the case. The defendant is not
required to prove his innocence [(an apparent
reference to Rule 431(b) principle (3))]. In
connection with the last sentence, this de-
fendant, as does every citizen, possesses an
absolute right not to testify at his trial if
he so chooses. If the defendant chooses not
to testify, you will receive an instruction
that states that the fact the defendant did
not testify must not be considered by you in
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any way in arriving at your verdict [(Rule
431(b) principle (4))]." (Emphases added.)
During voir dire, the trial court questioned the
potential jurors about their previous experiences with the legal
system and whether they were familiar with the defendant, attor-
neys, or witnesses. The court also asked each juror whether he
or she could think of any reason why he or she could not be "fair
and impartial." While each of the 12 jurors selected to hear the
case answered those questions in the negative, the court did not
conduct Zehr questioning of individual jurors. As a result, the
court never directly questioned the individual jurors regarding
their understanding of the Zehr principles as required by the
second paragraph of amended Rule 431(b).
Prior to deliberations, the trial court gave the jury
Illinois Pattern Jury Instructions, Criminal, Nos. 2.03 and 2.04
(4th ed. 2000) (hereinafter IPI Criminal 4th), regarding (1)
defendant’s presumption of innocence, (2) the State’s burden of
proof, and (3) "[t]he fact that defendant did not testify must
not be considered by [the jurors] in any way in arriving at [a]
verdict."
In this case, the record shows the trial court did not
fully comply with Rule 431(b). While the court advised the
venire en masse of the four Zehr principles, it did not pose the
specific questions of whether the jurors understood and accepted
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all four of those principles during voir dire. See Official
Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May
1, 2007 ("[t]he court's method of inquiry shall provide each
juror an opportunity to respond to specific questions concerning
the principles set out in this section"). As a result, the court
in this case did not follow the mandate of Rule 431(b), and this
failure to comply constituted error.
Having found error, we next consider whether the error
was so serious that it affected the fairness of defendant's
trial. We note defendant does not argue the evidence was closely
balanced. Instead, defendant contends the error "allowed for the
possibility of a partial jury, which affects the integrity of the
judicial process and ignores [his] constitutional rights to a
fair trial." As a result, we confine our review to the second
prong of the plain-error analysis. See People v. Alexander, 396
Ill. App. 3d 563, 575, 919 N.E.2d 1016, 1026 (2009) (Third
District); see also People v. Blue, 189 Ill. 2d 99, 139, 724
N.E.2d 920, 941 (2000) (where a defendant has been denied the
right to a fair trial, a reviewing court must remedy the error to
preserve the integrity of the judicial process without regard to
the evidence against the defendant). "[I]n applying the plain-
error doctrine under either prong to an alleged instructional
error, an analysis of the facts and circumstances of each partic-
ular case is required." People v. Magallanes, 397 Ill. App. 3d
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72, 93, 921 N.E.2d 388, 406 (2009).
In this case, the jurors were never asked whether they
understood and agreed defendant is not required to offer any
evidence and his failure to testify cannot be held against him.
A defendant’s right not to testify "'"is perhaps the most criti-
cal guarantee under our criminal process and is vital to the
selection of a fair and impartial jury that a juror understand
this concept." [Citation.]'" People v. Blanton, 396 Ill. App.
3d 230, 236, ___ N.E.2d ___, ___ (2009), quoting People v.
Brooks, 173 Ill. App. 3d 153, 158, 527 N.E.2d 436, 439 (1988)
(First District).
While the trial court advised the venire en masse of
the Zehr principles, it did not pose the specific questions of
whether the jurors understood and accepted any of those princi-
ples. Prior to the jurors being sworn in, the court simply read
the principles. During voir dire, the State and defense counsel
directly questioned the potential jurors. However, neither party
asked any juror about the four Zehr principles. Cf. People v.
Chester, 396 Ill. App. 3d 1067, 1075, ___ N.E.2d ___, ___ (2010)
(Fourth District, finding the trial court erred by failing to
address the fourth Zehr principle but declining to find plain
error where the defendant conceded defense counsel rectified the
error by addressing the fourth principle with the prospective
jurors).
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We find 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." People v. Owens, 394 Ill. App. 3d 147,
153, 914 N.E.2d 1280, 1285 (2009) (Fourth District, finding plain
error where the trial court addressed all four Rule 431(b)
principles to the venire en masse but failed to pose specific
questions to prospective jurors relating to any Rule 431(b)
principles). The court’s error here was "so substantial that it
affected the fundamental fairness of the proceeding," denied
defendant a substantial right, and thus a fair trial. Blanton,
396 Ill. App. 3d at 236, ___ N.E.2d at ___.
The fact that the trial court admonished the venire
before questioning and delivered IPI Criminal 4th Nos. 2.03 and
2.04--regarding the presumption of innocence, the State’s burden
of proof, and defendant’s decision not to testify--does not
excuse the court's failure to comply with the second paragraph of
Rule 431(b). Owens, 394 Ill. App. 3d at 153, 914 N.E.2d at 1285.
As a result, this court must reverse and remand for a new trial.
The supreme court’s recent decision in Glasper does not
alter the result in this case. In Glasper, 234 Ill. 2d at 189,
917 N.E.2d at 411-12, the supreme court addressed whether (1) the
trial court's failure to comply with preamended Rule 431(b)
requires a reviewing court to presume prejudice and automatically
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reverse defendant's conviction or (2) the error is subject to
harmless-error analysis. While the supreme court held the trial
court erred by not fully complying with Rule 431(b), it (1)
declined to find that a violation of Rule 431(b) is per se
reversible error and (2) concluded the error was harmless where
(a) no evidence was presented that the jury was biased and (b)
the evidence against the defendant was overwhelming. Glasper,
234 Ill. 2d at 199-201, 917 N.E.2d at 417-18.
However, the supreme court expressly limited its
holding in Glasper to the preamended version of Rule 431(b). As
a result, the decision does not purport to govern the application
of amended Rule 431(b), which is at issue in this case. See
Glasper, 234 Ill. 2d at 200, 917 N.E.2d at 418 (emphasizing "that
this holding is limited to the version of Rule 431(b)(4) that was
in effect at the time of the instant trial, and would not neces-
sarily apply to subsequent versions of the rule").
Unlike the preamended version of Rule 431(b) at issue
in Glasper, the protections provided by the Zehr principles are
extended to all defendants under amended Rule 431(b) and not only
those who choose to exercise them by requesting questioning.
People v. Graham, 393 Ill. App. 3d 268, 276, 913 N.E.2d 99, 106
(2009) (First District); compare 177 Ill. 2d R. 431(b) (where
questioning is optional absent a defendant’s request, which
triggers mandatory questioning) with Official Reports Advance
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Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007 (where
mandatory questioning is automatic and a defendant’s request is
unnecessary).
This distinction is consistent with other recent
appellate court decisions (1) finding plain error based on the
fact that the trial court’s failure to comply with amended Rule
431(b) denied the defendants a substantial right and (2) conclud-
ing the holding in Glasper was limited to the prior version of
Rule 431(b). See, e.g., Blanton, 396 Ill. App. 3d at 236, 238,
___ N.E.2d at ___, ___ (Fourth District); see also, e.g., People
v. Madrid, 395 Ill. App. 3d 38, 47, 916 N.E.2d 1273, 1281 (2009)
(First District); People v. Blair, 395 Ill. App. 3d 465, 478-79,
917 N.E.2d 43, 56-57 (2009) (Second District); People v.
Wilmington, 394 Ill. App. 3d 567, 572, 575-76, 915 N.E.2d 882,
886, 889 (2009) (First District); Graham, 393 Ill. App. 3d at
275-76, 913 N.E.2d at 105-06 (First District).
Finally, we find the evidence presented at trial was
sufficient to sustain defendant's conviction. Although we reach
no conclusion binding on retrial as to defendant's guilt, we
conclude that double jeopardy does not bar a retrial of defen-
dant. See Walker, 232 Ill. 2d at 131, 902 N.E.2d at 700.
For the reasons stated, we reverse defendant's convict-
ion and remand for a new trial.
Reversed and remanded.
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MYERSCOUGH, P.J., and KNECHT, J., concur.
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