People v. Anderson

Opinion

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). 1-07-1768

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

-2- 1-07-1768

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

-3- 1-07-1768

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

-4- 1-07-1768

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

-5- 1-07-1768

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:

-6- 1-07-1768

“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].

-7- 1-07-1768 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

-8- 1-07-1768 sign a verdict form of not guilty?

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

Is there anybody who has any qualms or problems

with those propositions of law?

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

-9- 1-07-1768 into the jury room with your fellow jurors and follow

sign a verdict form of guilty? Anybody who could not

or would not do that for any reason?

sign the verdict form of not guilty?

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?

-10- 1-07-1768 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

guilty? Anybody who would not or could not do that?

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.

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

-11- 1-07-1768 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.

-12- 1-07-1768 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.

-13- 1-07-1768 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

-14- 1-07-1768 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

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.

-15- 1-07-1768 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.”

-16- 1-07-1768 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)

-17- 1-07-1768 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.

-18- 1-07-1768 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

-19- 1-07-1768 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.

-20- 1-07-1768 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

-21- 1-07-1768 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

-22- 1-07-1768 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,

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

-23- 1-07-1768 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

-24- 1-07-1768 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.

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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