NO. 4-08-0120 Filed 11/10/09
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 CRAIG J. BLANTON, ) No. 07CF488 Defendant-Appellant. ) ) Honorable ) Harry E. Clem, ) Judge Presiding. _________________________________________________________________
JUSTICE MYERSCOUGH delivered the opinion of the court:
In December 2007, a jury found defendant, Craig J.
Blanton, guilty of armed robbery (720 ILCS 5/18-2(a)(2) (West
2006)) and aggravated robbery (720 ILCS 5/18-5(a) (West 2006)).
In January 2008, the trial court vacated the aggravated-robbery
conviction under the one-act, one-crime rule and sentenced
defendant to 25 years' imprisonment for armed robbery. Defendant
appealed, arguing (1) the sentence for armed robbery violated the
proportionate-penalties clause of the Illinois Constitution (Ill.
Const. 1970, art. I, §11), (2) the trial court failed to comply
with Supreme Court Rule 431(b) (Official Reports Advance Sheet
No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007), and (3) the
court improperly considered the class of victim as an aggravating
sentencing factor.
On June 17, 2009, this court issued an opinion finding
the trial court erred by failing to question each venireperson as to whether he or she understood and accepted the principle that
defendant's failure to testify could not be held against defen-
dant. People v. Blanton, No. 4-08-0120, slip op. at 10 (June 17,
2009). This court found such error constituted plain error
because the failure to advise the jurors that defendant's failure
to testify could not be held against him was "'so substantial
that it affected the fundamental fairness of the proceeding.'"
Blanton, slip op. at 9, quoting People v. Hall, 194 Ill. 2d 305,
335, 743 N.E.2d 521, 539 (2000).
One day later, on June 18, 2009, the supreme court
issued its decision in People v. Glasper, No. 103937 (June 18,
2009), Ill. 2d , , N.E.2d , . The Glasper
case involved the former version of Rule 431(b), which required
inquiry into the principles articulated by People v. Zehr, 103
Ill. 2d 472, 477, 469 N.E.2d 1062, 1064 (1984), only upon the
defendant's request. Glasper, slip op. at 7-8, Ill. 2d at
, N.E.2d at . In Glasper, the supreme court held that
a harmless-error analysis applied to the trial court's error in
refusing, upon defense counsel's request, to ask the potential
jurors whether they understood and accepted the principle that
the defendant's exercise of his right not to testify could not be
held against him. Glasper, slip op. at 13, Ill. 2d at ,
N.E.2d at . Applying that analysis, the supreme court
found that the evidence of the defendant's guilt was overwhelming
- 2 - and that the error was harmless. Glasper, slip op. at 20,
Ill. 2d at , N.E.2d at .
On July 8, 2009, the State filed a petition for rehear-
ing asking this court to reconsider its holding in light of
Glasper. This court granted the petition for rehearing.
Because Glasper does not change the result in this
case, we reverse and remand for a new trial.
I. BACKGROUND
In March 2007, the State charged defendant by informa-
tion with armed robbery (720 ILCS 5/18-2(a)(2) (West 2006)) and
aggravated robbery (720 ILCS 5/18-5(a) (West 2006)). In April
2007, the grand jury returned a true bill on both counts.
On December 13, 2007, the trial court conducted voir
dire examination of the venire. The court advised the venire as
a whole that (1) the State has the burden of proof and must prove
defendant guilty beyond a reasonable doubt, (2) defendant was
presumed innocent of the charges brought against him, and (3)
defendant did not have to present evidence unless he chose to do
so. With each panel of venirepersons seated in the jury box, the
court either (1)(a) again explained the principles that the State
bore the burden of proof beyond a reasonable doubt, defendant was
presumed innocent, and defendant did not have to present any
evidence unless he chose to do so or (b) stated that the venire
had previously heard several legal propositions explained during
- 3 - the voir dire, and (2) asked each panel of venirepersons whether
he or she understood and supported those principles. Each
venireperson ultimately selected as a juror answered "yes."
Defense counsel also questioned several of the members
of the venire about the same principles addressed by the trial
court: that defendant was presumed innocent, the State must prove
defendant guilty beyond a reasonable doubt, and defendant was not
required to offer evidence on his behalf. Defense counsel asked
one venireperson, ultimately selected for the jury, whether he
understood that if defendant chose not to present any evidence,
the venireperson could not hold that against defendant. The
venireperson answered "Right." Defense counsel asked another
venireperson, also ultimately selected for the jury, whether he
understood that defendant did not have to "say anything or prove
that he did not commit" the crime but that the State must prove
that defendant committed the crime. The venireperson answered
"Yes."
The case proceeded to trial. Defendant presented no
evidence and did not testify. At the jury-instruction confer-
ence, the State tendered a set of jury instructions but withdrew
the instruction that charged the jury to judge defendant's
testimony in the same manner as the testimony of any other
witness. See Illinois Pattern Jury Instructions, Criminal, No.
1.02 (4th ed. 2000) (hereinafter IPI Criminal 4th). Defense
- 4 - counsel did not object to withdrawing that instruction or tender
the instruction that the jury should not consider the fact that
defendant did not testify. See IPI Criminal 4th No. 2.04 ("[t]he
fact that [the] defendant did not testify must not be considered
by you in any way in arriving at your verdict"). The trial court
did not instruct the jury that defendant's failure to testify
could not be considered.
The jury found defendant guilty of aggravated robbery
and armed robbery. In January 2008, the trial court vacated the
aggravated-robbery conviction under the one-act, one-crime rule
and sentenced defendant to 25 years' imprisonment for armed
robbery.
This appeal followed.
II. ANALYSIS
On appeal, defendant argues the trial court's failure
to fully comply with Supreme Court Rule 431(b) requires reversal
of his conviction and remand for a new trial. The State argues
(1) defendant forfeited the argument by not objecting in the
trial court or in a posttrial motion; (2) defendant acquiesced in
the procedure used by the court, a procedure that did not include
a specific, direct reference to testimony of the defendant; (3)
no error occurred in the voir dire as a whole because references
to the fact that defendant did not have to present evidence were
sufficient to disclose any potential bias from the potential
- 5 - jurors even though no specific questions were asked regarding the
jurors' views about defendant's right not to testify; and (4) any
shortcomings in the conduct of voir dire should be deemed harm-
less.
A. Standard of Review Is De Novo
This court reviews the issue of compliance with a
supreme court rule de novo. People v. Garner, 347 Ill. App. 3d
578, 583, 808 N.E.2d 10, 14 (2004) (involving compliance with
Rule 605(a) (210 Ill. 2d R. 605(a)).
B. Supreme Court Rule 431(b)
Supreme Court Rule 431(b) was adopted in 1997 to ensure
compliance with Zehr, 103 Ill. 2d at 477, 469 N.E.2d at 1064.
See Glasper, slip op. at 7-8, Ill. 2d at , N.E.2d at
. The Zehr court held that "essential to the qualification
of jurors in a criminal case is that they know that a defendant
is presumed innocent, that he is not required to offer any
evidence in his own behalf, that he must be proved guilty beyond
a reasonable doubt, and that his failure to testify in his own
behalf cannot be held against him." Zehr, 103 Ill. 2d at 477,
469 N.E.2d at 1064. As originally enacted, Rule 431(b) provided
that the trial court was not obligated to ask potential jurors
whether they understood and accepted the Zehr principles absent a
request from defense counsel. See People v. Jocko, 389 Ill. App.
- 6 - 3d 247, 259, 906 N.E.2d 38, 48 (2009), appeal allowed, 233 Ill.
2d 580, N.E.2d (2009).
Effective May 1, 2007, Rule 431(b) was amended to
impose "a sua sponte duty on the trial court to question each
potential juror as to whether he understands and accepts the Zehr
principles." People v. Gilbert, 379 Ill. App. 3d 106, 110, 882
N.E.2d 1140, 1145 (2008). That is, such questioning was no
longer dependent upon a request by defense counsel. Gilbert, 379
Ill. App. 3d at 110, 882 N.E.2d at 1145. Rule 431(b) currently
provides as follows:
"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
- 7 - 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." 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 (1984). It seeks to
end the practice where the judge makes a
broad statement of the applicable law fol-
lowed by a general question concerning the
juror's willingness to follow the law." 177
Ill. 2d R. 431(b), Committee Comments, at
lxxix.
C. Trial Court's Failure To Comply With Rule 431(b) Constituted Plain Error
In this case, the trial court advised each venireperson
of the first three Zehr principles and questioned each
venireperson whether he or she understood and accepted the first
three Zehr principles in a manner that allowed each venireperson
an opportunity to respond. However, the court neither advised
the venirepersons of the fourth Zehr principle--that defendant's
- 8 - failure to testify could not be held against him--nor questioned
each venireperson whether he or she understood and accepted the
fourth Zehr principle. Neither defense counsel nor the State
addressed the fourth Zehr principle either, perhaps because
defendant was going to testify.
Given the absence of any inquiry of the venirepersons
regarding the fourth Zehr principle by the trial court, defense
counsel, or the State, defense counsel may have actually objected
off the record to any such inquiry. See Official Reports Advance
Sheet No. 8 (April 11, 2007), R. 431(b)(4), eff. May 1, 2007 ("no
inquiry of a prospective juror shall be made into the defendant's
failure to testify when the defendant objects"). However, the
record does not so reflect, and defendant did not testify.
Therefore, error clearly occurred here because the trial court
did not question each venireperson as to whether he or she
understood and accepted the fourth Zehr principle.
In response to the State's argument that defendant
forfeited the issue by failing to raise it in the trial court,
defendant asks this court to review the error under the plain-
error doctrine. The State asserts that a harmless-error analysis
applies. We agree with defendant.
Defendant did not object to the error in the trial
court. A plain-error analysis applies when the defendant failed
to make a timely objection in the trial court while a harmless-
- 9 - error analysis applies when the defendant timely objected to the
error. People v. Johnson, 388 Ill. App. 3d 199, 203, 902 N.E.2d
1265, 1268 (2009), appeal allowed, 232 Ill. 2d 588, 910 N.E.2d
1130 (2009) (No. 108253).
In this case, because defendant did not object in the
trial court, this court must examine the error for plain error.
See People v. Owens, 4-08-0161, slip op. at 9-11 (September 16,
2009), Ill. App. 3d , , N.E.2d , (applying a
plain-error analysis where the defendant failed to object to the
trial court's failure to determine through questioning whether
each juror understood and accepted the Zehr principles). This
court may review an error under the plain-error doctrine if (1)
the evidence is closely balanced or (2) the error is "so substan-
tial that it affected the fundamental fairness of the proceeding,
and remedying the error is necessary to preserve the integrity of
the judicial process." People v. Hall, 194 Ill. 2d 305, 335, 743
N.E.2d 521, 539 (2000). Under the second prong, "[p]rejudice to
the defendant is presumed because of the importance of the right
involved." People v. Herron, 215 Ill. 2d 167, 187, 830 N.E.2d
467, 480 (2005).
The principle involved here--that a defendant's failure
to testify in his own behalf cannot be held against him--"'is
perhaps the most critical guarantee under our criminal process
and is vital to the selection of a fair and impartial jury that a
- 10 - juror understand this concept.' [Citation.]" People v. Brooks,
173 Ill. App. 3d 153, 158, 527 N.E.2d 436, 439 (1988). In this
case, the jurors were never even advised that defendant's failure
to testify could not be held against him. See, e.g., People v.
Wilmington, No. 1-07-2518, slip op. at 11-12 (September 24,
2009), Ill. App. 3d , , N.E.2d , (finding
plain error where, although the trial court informed the venire
members of all four Zehr principles, the court failed to question
the potential jurors about their acceptance and understanding of
one of the principles--the defendant's right not to testify; the
failure "denied the defendant the right to a fair and impartial
jury"). The error here was so substantial that it affected the
fundamental fairness of the proceeding. See, e.g., People v.
Blair, No. 2-07-0862, slip op. at 18 (September 29, 2009),
Ill. App. 3d , , N.E.2d , (finding that the
trial court's failure "to ask a majority of the jurors whether
they understood and accepted three of the four Zehr principles"
denied the "defendant a substantial right, undermined the fair-
ness of his trial, and impacted the integrity of the judicial
process").
As stated in Zehr:
"We are of the opinion that essential to
the qualification of jurors in a criminal
case is that they know that a defendant is
- 11 - presumed innocent, that he is not required to
offer any evidence in his own behalf, that he
must be proved guilty beyond a reasonable
doubt, and that his failure to testify in his
own behalf cannot be held against him."
Zehr, 103 Ill. 2d at 477, 469 N.E.2d at 1064.
This court must therefore reverse and remand for a new trial.
1. Result Not Affected by Glasper
This result is not affected by the recent decision by
the supreme court in Glasper. In Glasper, the version of Rule
431(b) in effect required that the trial court ask the potential
jurors whether they understood and accepted the Zehr principles
only if requested by the defendant. Glasper, slip op. at 8,
Ill. 2d at , N.E.2d at . The defendant asked the trial
court to inquire of the potential jurors about the defendant's
right not to testify, but the court refused. Glasper, slip op.
at 8-9, Ill. 2d at , N.E.2d at . Instead, the
court told the venire, as a group, about each of the Zehr princi-
ples, including that the defendant did not have to testify on his
own behalf and that his failure to testify could not be consid-
ered in arriving at a verdict. Glasper, slip op. at 9, Ill.
2d at , N.E.2d at . The court did not, however, ask
each venire member if the defendant's decision not to testify
would influence his or her verdict. Glasper, slip op. at 9,
- 12 - Ill. 2d at , N.E.2d at .
The supreme court found that the trial court's refusal
to ask the venire, upon the defendant's request, whether it
understood and accepted the principle that the defendant's
failure to testify cannot be held against him constituted error.
Glasper, slip op. at 9, Ill. 2d at , N.E.2d at .
The court then examined whether the error required the court to
presume prejudice and automatically reverse or whether the error
was subject to a harmless-error analysis. Glasper, slip op. at
10, Ill. 2d at , N.E.2d at .
The supreme court noted that reversal was automatic
only where the error was "structural," meaning "a systemic error
which serves to 'erode the integrity of the judicial process and
undermine the fairness of the defendant's trial.'" Glasper, slip
op. at 16, Ill. 2d at , N.E.2d at , quoting Herron,
215 Ill. 2d at 186, 830 N.E.2d at 479. The court found the error
was not structural and automatic reversal was not required
because (1) the case did not involve a fundamental or constitu-
tional right but merely a right made available by rule of the
supreme court and (2) under the rule in effect at that time, the
right was afforded only to those defendants who chose to exercise
it. Glasper, slip op. at 15-16, Ill. 2d at , N.E.2d
at . The court held:
"Defendants do not have a right to Rule
- 13 - 431(b)(4) questioning under either the United
States or the Illinois Constitution. A de-
fendant's 'right' to such questioning in
Illinois courts is the product of this court-
's inherent power to make rules regulating
the conduct of the circuit courts. [Cita-
tion.] While the rule is designed to help
ensure that defendants are tried before a
fair jury, we cannot say that Rule 431(b)(4)
questioning is indispensable to a fair trial.
This point is inherent in the rule itself,
which originally required the questioning
only if the defendant requested it. It would
be inconsistent to conclude that the failure
to question the venire in compliance with
Rule 431(b)(4) ensures that biased jurors
will be impaneled when a defendant can choose
to forgo such questioning, apparently without
such concerns." Glasper, slip op. at 15,
The court further stated:
"As previously stated, when crafting the
version of Rule 431(b) applicable here, this
court had the opportunity to mandate Zehr
- 14 - questioning in every case, but chose not to.
Instead, this court made the right to Zehr
questioning permissive. The court intention-
ally structured Rule 431(b) so that the trial
court's default position was to refrain from
Zehr questioning. We conclude that a viola-
tion of Rule 431(b), as applied in this case,
does not require automatic reversal and is
amenable to harmless[-]error review." Glasp-
er, slip op. at 18, Ill. 2d at ,
N.E.2d at .
The supreme court emphasized several times that the
holding was limited to the version of Rule 431(b)(4) in effect at
the time of the trial and that it "would not necessarily apply to
subsequent versions of the rule." Glasper, slip op. at 18,
Ill. 2d at , N.E.2d at . The court also expressly
noted that it did not hold that a violation of Rule 431(b)(4)
could never result in reversible error, and that if the facts
demonstrated that the defendant was tried before a biased jury,
the conviction would be reversed. Glasper, slip op. at 18,
Ill. 2d at , N.E.2d at . The court further stated:
"However, there are no such facts in the
instant case. We reject the idea that the
trial court's failure to conduct Rule
- 15 - 431(b)(4) questioning makes it inevitable
that the jury was biased, particularly when
the record before us demonstrates that the
jurors in this case were both admonished and
instructed against forming an adverse infer-
ence against defendant based on his decision
not to testify. To do so would require us to
presume that citizens sworn as jurors ignore
the law and the jury instructions given to
them. This notion is contrary to our prece-
dent which instructs us to make the opposite
presumption." Glasper, slip op. at 18-19,
The Glasper court then applied a harmless-error analy-
sis and concluded that the evidence against the defendant was
overwhelming. Glasper, slip op. at 20, Ill. 2d at ,
N.E.2d at . Therefore, the error was harmless beyond a
reasonable doubt. Glasper, slip op. at 20, Ill. 2d at ,
2. Application of Glasper to This Case
The State argues that the holding in Glasper is equally
applicable to the new version of Rule 431(b). Specifically, the
State argues the supreme court found that the error in failing to
follow Rule 431(b) did not involve a fundamental or constitu-
- 16 - tional right and that the Rule 431(b) questioning was not indis-
pensable to a fair trial. Therefore, according to the State, the
failure to comply could not have affected the fundamental fair-
ness of the proceeding. We disagree.
The Glasper case involved the former version of Rule
431(b), and the supreme court expressly limited its holding to
the former version. Glasper, slip op. at 18, Ill. 2d at ,
N.E.2d at . The former version of the rule did not
mandate Rule 431(b) questioning in every case but only when the
defendant requested it. Glasper, slip op. at 15, Ill. 2d at
, N.E.2d at ("It would be inconsistent to conclude
that the failure to question the venire in compliance with Rule
431(b)(4) ensures that biased jurors will be impaneled when a
defendant can choose to forgo such questioning, apparently
without such concerns").
In contrast, Rule 431(b) in its present form mandates
the Rule 431(b) questioning in every case, only allowing a
defendant to object to any inquiry about the fourth Zehr
principle--that a defendant's failure to testify cannot be held
against him. This distinction warrants a different result here.
See, e.g., People v. Graham, 393 Ill. App. 3d 268, 275, 913
N.E.2d 99, 105-06 (2009) (holding that the trial court's failure
to ascertain whether all the potential jurors understood and
accepted the Zehr principles constituted plain error because the
- 17 - error denied the defendant a substantial right and a fair trial;
also concluding that Glasper did not change the result because
the holding in Glasper was limited to the former version of Rule
431(b) and the amendments to Rule 431(b) extended the rule's
protection to all defendants, not only defendants who asked for
it); People v. Madrid, 1-08-0324, slip op. at 11-12 (October 8,
2009), Ill. App. 3d , , N.E.2d , (holding
that the trial court's failure to ask the potential jurors
whether they understood and accepted all the Zehr principles
denied the defendant a substantial right and a fair trial);
People v. Arredondo, No. 1-07-2825, slip op. at 14 (October 8,
that the trial court's (1) failure to question any of the pro-
spective jurors regarding their understanding and acceptance of
the principle that the defendant is presumed innocent of the
charges against him and (2) general question regarding the
potential jurors' willingness to follow the law instead of an
inquiry about their understanding and acceptance of the State's
burden of proof constituted plain error and denied the defendant
a substantial right and a fair trial).
In addition, although the Glasper court did not address
plain error, the second prong of the plain-error analysis and the
analysis for structural error are similar. See People v. Blue,
189 Ill. 2d 99, 138, 724 N.E.2d 920, 940 (2000) (wherein the
- 18 - supreme court does not use the term "structural error" but states
that "[t]o determine whether [the] defendant's right to a fair
trial has been compromised, we employ the same test that this
court uses whenever it applies the second prong of the
plain[-]error test"). The second prong of the plain-error
analysis recognizes that the error is "so substantial that it
affected the fundamental fairness of the proceeding, and remedy-
ing the error is necessary to preserve the integrity of the
judicial process." Hall, 194 Ill. 2d at 335, 743 N.E.2d at 539.
Similarly, a structural error is "a systemic error which serves
to 'erode the integrity of the judicial process and undermine the
fairness of the defendant's trial.'" Glasper, slip op. at 16,
Ill. 2d at , N.E.2d at , quoting Herron, 215 Ill.
2d at 186, 830 N.E.2d at 479.
However, the supreme court in Glasper specifically
stated that the court was not holding that a violation of Rule
431(b) would never constitute reversible error. Glasper, slip
op. at 18, Ill. 2d at , N.E.2d at . Instead, the
supreme court noted a violation would constitute reversible error
if the trial was conducted before a biased tribunal because "a
trial before a biased tribunal would constitute structural
error." Glasper, slip op. at 18, Ill. 2d at , N.E.2d
at . One of the reasons for finding that the trial in Glasper
had not been conducted before a biased tribunal was that the
- 19 - record showed the jury had been admonished and instructed against
forming an adverse inference against defendant based on his
decision not to testify. Glasper, slip op. at 18-19, Ill. 2d
at , N.E.2d at . Those facts are not present in our
case. In this case, the jurors were never advised or instructed
that defendant's failure to testify could not be held against
him. Therefore, Glasper is distinguishable on this basis as
well.
This result is consistent with the recent decision by
this court in Owens, slip op. at 9, Ill. App. 3d at ,
N.E.2d at . In Owens, this court, without discussing Glasper,
held that despite the fact that the trial court reviewed the Zehr
principles with the entire venire, the court's error in failing
to directly question the individual jurors regarding their
agreement or disagreement with those principles constituted plain
error. The Owens court found that the fact that the court
admonished the venire before questioning, gave oral instructions
before deliberations began, and delivered jury instructions that
recited the Zehr principles in whole or in part, did not excuse
the court's failure to comply with Rule 431(b). Owens, slip op.
at 12, Ill. App. 3d at , N.E.2d at . This court
held, "We conclude the record here reveals a complete breakdown
of the judicial process that undermines this court's confidence
in the jury's verdict." Owens, slip op. at 11, Ill. App. 3d
- 20 - at , N.E.2d at .
Similarly here, plain error occurred when the trial
court failed to question each venireperson as to whether he or
she understood and accepted the principle that defendant's
failure to testify could not be held against him. The error was
so substantial that it affected the fundamental fairness of the
proceeding.
Finally, we find that the evidence 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 defendant. See People
v. Walker, 232 Ill. 2d 113, 131, 902 N.E.2d 691, 700 (2009).
III. CONCLUSION
For the reasons stated, we reverse defendant's convic-
tion and remand for a new trial.
Reversed and remanded.
McCULLOUGH, P.J., and APPLETON, J., concur.
- 21 -