NO. 4-08-0841 Opinion Filed 4/11/11
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) McLean County GREGORY J. CHESTER, ) Nos. 07CF1069 Defendant-Appellant. ) 07CF797 ) ) Honorable ) Robert L. Freitag, ) Judge Presiding. _________________________________________________________________
JUSTICE POPE delivered the judgment of the court, with opinion. Justices Appleton and McCullough concurred in the judgment and opinion.
OPINION
In October 2007, defendant, Gregory J. Chester, was
indicted on three counts of aggravated battery (720 ILCS 5/12-
4(a), (b)(6) (West 2006)) and one count of resisting a peace
officer (720 ILCS 5/31-1(a-7) (West 2006)). Following a jury
trial, defendant was convicted and sentenced to 12 years' impris-
onment for aggravated battery (McLean County case No. 07-CF-1069)
with the sentence to run consecutive to defendant's sentences in
McLean County case No. 07-CF-797 of 5 years' imprisonment for
obstructing justice and 364 days in jail for resisting arrest.
Defendant appealed only issues raised in his
aggravated-battery case (McLean County case No. 07-CF-1069),
arguing the following: (1) the trial court violated Illinois
Supreme Court Rule 431(b) (eff. May 1, 2007); (2) the State
improperly commented during closing argument on defendant's exercise of his right to refrain from testifying and presenting
evidence; and (3) the trial court abused its discretion in
sentencing defendant to 12 years' imprisonment. In January 2010,
this court affirmed. People v. Chester, 396 Ill. App. 3d 1067,
926 N.E.2d 723 (2010).
The Supreme Court of Illinois denied defendant’s
petition for leave to appeal but issued a supervisory order
(People v. Chester, 239 Ill. 2d 561 (2011) (nonprecedential
supervisory order on denial of petition for leave to appeal))
directing this court to vacate our judgment and to reconsider in
light of People v. Thompson, 238 Ill. 2d 598, 939 N.E.2d 403
(2010). In accordance with the supreme court’s directions, we
vacate our prior judgment and reconsider in light of Thompson to
determine whether a different result is warranted. Because
Thompson does not change the result in this case, we again
affirm.
I. BACKGROUND
On October 6, 2007, Bloomington police officer Andrew
Chambers was in complete police uniform patrolling in a marked
police car when he passed a purple Cadillac driven by defendant,
who Officer Chambers knew did not have a valid driver's license.
After Officer Chambers activated his car's lights and siren, the
Cadillac pulled into the driveway of an apartment complex.
Defendant exited the vehicle and looked back at Officer Chambers,
then proceeded to take off running. Officer Chambers got out of
his vehicle and, standing approximately 20 feet from defendant,
- 2 - yelled at defendant to stop. Defendant proceeded into the common
area of the apartment building through a steel door. As Officer
Chambers followed, defendant slammed the door into the officer.
Officer Chambers shielded his face with his left arm. He immedi-
ately felt extreme pain, and his fingers went numb when the door
slammed on his arm.
Once inside the building, Officer Chambers attempted to
deploy his Taser, but the probe fell off in the hallway. As he
proceeded up the stairs, defendant yelled, "[B]aby, police are
chasing me. Open the door." Officer Chambers followed defendant
up the stairs and saw defendant banging on the door of apartment
C, saying "let me in, let me in." A female inside the apartment
opened the door for defendant, who entered the apartment and
slammed the door on Officer Chambers' right arm. Officer Cham-
bers braced himself and pushed the door back on defendant,
knocking him to the ground. Defendant continued to resist arrest
as Officer Chambers attempted to subdue him with pressure-point
tactics. Defendant ripped the officer's uniform and ripped off
his credentials and badge. Officer Chambers was eventually able
to conduct a "drive stun" on defendant, holding the gun directly
against defendant's body. The drive stun was not successful, and
defendant continued hitting Officer Chambers and became more
aggressive in his resistance. The officer issued a second drive
stun for approximately five seconds. Defendant dropped his arms
to his side and said, "I quit."
X rays of Officer Chambers's left arm revealed frac-
- 3 - tures in the ulna and radius, both of the bones in the forearm.
Because of the injuries he sustained, he was in physical therapy
for 1 1/2 months and missed approximately 3 months of work.
After presenting its case, the State dropped one count
of aggravated battery (720 ILCS 5/12-4(b)(6) (West 2006)) as
improperly charged. The jury convicted defendant of the remain-
ing two aggravated-battery charges and resisting a peace officer.
After the trial court found the resisting charge and one of the
aggravated-battery charges merged with the remaining count of
aggravated battery, the court sentenced defendant as stated.
We affirmed, 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 Thompson.
II. ANALYSIS
On appeal, defendant argues (1) the trial court vio-
lated Supreme Court Rule 431(b); (2) the State improperly com-
mented during closing argument on defendant's exercise of his
right to refrain from testifying and presenting evidence; and (3)
the trial court abused its discretion in sentencing defendant to
12 years' imprisonment.
A. Voir Dire
Defendant argues the trial court violated Illinois
Supreme Court Rule 431(b) (eff. May 1, 2007) when it failed to
question jurors on the third and fourth Rule 431(b) principles,
which provide defendant is not required to present evidence on
his own behalf and defendant's choice not to testify may not be
- 4 - held against him. Defendant concedes he failed to preserve this
issue for review but maintains the issue may be addressed by this
court as it constitutes plain error.
The plain-error doctrine allows a reviewing court to
consider an unpreserved and otherwise forfeited error when "(1)
the evidence is close, regardless of the seriousness of the
error[;] or (2) the error is serious, regardless of the closeness
of the evidence." People v. Herron, 215 Ill. 2d 167, 186-87, 830
N.E.2d 467, 479 (2005). A harmless-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). Because
defendant failed to object at trial, we analyze any error under
the plain-error doctrine. However, before we consider the plain-
error doctrine, we must determine whether the trial court commit-
ted an error. We review the trial court's compliance with a
supreme court rule de novo. People v. Suarez, 224 Ill. 2d 37,
41-42, 862 N.E.2d 977, 979 (2007).
In People v. Zehr, 103 Ill. 2d 472, 477, 469 N.E.2d
1062, 1064 (1984), our supreme court held essential to the
qualification of a jury in a criminal case is each juror's
knowledge of the following four principles: (1) a defendant is
presumed innocent, (2) he is not required to present evidence on
his own behalf, (3) the State must prove him guilty beyond a
reasonable doubt, and (4) his decision not to testify may not be
held against him. The subject matter of these principles should
be addressed in the course of voir dire as a juror's prejudice as
- 5 - to any of them would not be automatically cured with closing
remarks by counsel or jury instructions from the trial court.
Zehr, 103 Ill. 2d at 477, 469 N.E.2d at 1064.
In 1997, our supreme court adopted Rule 431(b) to
embrace the voir dire principles established in Zehr. Ill. S.
Ct. R. 431(b) (eff. May 1, 1997). The original rule provided,
"[i]f requested by the defendant, the court shall ask each
potential juror, individually or in a group, whether that juror
understands and accepts" the four Zehr principles. (Emphasis
added.) Ill. S. Ct. R. 431(b) (eff. May 1, 1997). At that time,
the trial court had no obligation to sua sponte question jurors
as to the Zehr principles. People v. Graham, 393 Ill. App. 3d
268, 272, 913 N.E.2d 99, 103 (2009).
However, effective May 1, 2007, the supreme court
amended the language to require trial courts to question jurors
on the Rule 431(b) principles without a defendant's prompting,
providing:
"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
- 6 - any evidence on his or her behalf; and (4)
that the defendant's failure to testify can-
not 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." Ill. S. Ct. R.
431(b) (eff. May 1, 2007).
By removing the language that only required Zehr
questioning at defendant's request, our supreme court imposed a
sua sponte duty on courts to ask potential jurors individually or
in a group whether they accept these principles. Graham, 393
Ill. App. 3d at 273, 913 N.E.2d at 103. In carrying out this new
duty, trial courts are required to allow each juror an opportu-
nity to respond. Graham, 393 Ill. App. 3d at 273, 913 N.E.2d at
103.
The trial in the present case occurred after the 2007
amendment became effective. Thus, the trial court had a duty to
question the jurors about the Rule 431(b) principles and allow
the jurors to indicate whether they accepted the principles.
During voir dire in the present case, the trial court
addressed the Rule 431(b) principles as follows:
"The defendant in this case is presumed
to be innocent of the charges against him.
This presumption remains with the defendant
throughout every stage of the trial and dur-
ing the jury deliberations on the verdict,
- 7 - and it is not overcome unless from all the
evidence in this case the jury is convinced,
both individually and collectively, that the
defendant has been proven guilty beyond a
reasonable doubt.
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."
The trial court then asked the potential jurors in
groups, row by row, whether they understood and accepted those
basic propositions of law. Everyone answered in the affirmative.
After the court addressed individual issues with jurors, defense
counsel began questioning. Defense counsel told the prospective
jurors the following:
"Now [defendant] may or may not testify.
We haven't made that decision yet, but that
is his right to not testify and it is also
his right to testify. If he chooses that he
wishes to do that[,] would anybody have a
problem if he chose not to testify or would
you hold it against him in any way if he did
not testify?"
All of the prospective jurors indicated they accepted the fourth
Rule 431(b) principle. At the end of the trial, before the jury
- 8 - retired for deliberations, the court properly instructed the jury
on all four Zehr principles.
Defendant argues the trial court erred when it failed
to advise the potential jurors of the third and fourth Rule
431(b) principles, i.e., that defendant need not present evidence
on his own behalf and his decision not to testify cannot be held
against him. The court's statement that "defendant is not
required to prove his innocence" would be interpreted by a
reasonable jury to satisfy the third Rule 431(b) principle
because if defendant is not required to prove his innocence, he
has no reason to present evidence. As Rule 431(b) does not
require the court to recite the principles verbatim, the court's
language was sufficient to comply with the rule.
Despite its satisfaction of the third Rule 431(b)
principle, the trial court erred by not addressing the fourth
principle. While defendant concedes defense counsel rectified
this error by addressing the fourth principle with the prospec-
tive jurors, the court itself is required to address this princi-
ple. Thus, the court 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 a Rule 431(b) violation
mandates automatic reversal because of the denial of the funda-
mental right to a fair trial by an impartial jury. As a result,
- 9 - we confine our review to the second prong of the plain-error
analysis. See 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).
"To determine whether 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." Blue, 189 Ill. 2d at 138, 724 N.E.2d at 940. We consider
whether a substantial right has been affected to the extent we
doubt that defendant's trial was fundamentally fair. Blue, 189
Ill. 2d at 138, 724 N.E.2d at 940-41. Regardless of the weight
of the evidence presented against defendant, a new trial is
essential where the trial court's error threatens the integrity
of the judicial process. Blue, 189 Ill. 2d at 139, 724 N.E.2d at
941.
In Thompson, however, the supreme court clarified Rule
431(b) questioning is not indispensable to a fair trial and a
violation thereof does not necessitate automatic reversal under
the second prong of the plain-error analysis. Thompson, 238 Ill.
2d at 614-15, 939 N.E.2d at 414. Specifically, the supreme court
found the following:
"A finding that defendant was tried by a
biased jury would certainly satisfy the sec-
ond prong of plain-error review because it
- 10 - would affect his right to a fair trial and
challenge the integrity of the judicial pro-
cess. Critically, however, defendant has not
presented any evidence that the jury was
biased in this case. Defendant has the bur-
den of persuasion on this issue. We cannot
presume the jury was biased simply because
the trial court erred in conducting the Rule
431(b) questioning." Thompson, 238 Ill. 2d
at 614, 939 N.E.2d at 413-14.
The Thompson court held that because defendant had failed to
establish the court’s Rule 431(b) violation resulted in a biased
jury, defendant had failed to meet his burden of showing the
error affected the fairness of his trial and challenged the
integrity of the judicial process. Thompson, 238 Ill. 2d at 615,
939 N.E.2d at 414.
The supreme court also made it clear its reasoning
applied regardless of whether the analysis took place under the
amended or preamended version of the rule. Thompson, 238 Ill. 2d
at 614, 939 N.E.2d at 414 ("the failure to conduct Rule 431(b)
questioning does not necessarily result in a biased jury, regard-
less of whether that questioning is mandatory or permissive under
our rule"). The court found while amended Rule 431(b) serves to
promote the selection of an impartial jury, it is only one method
of helping ensure the selection of a an impartial jury and "is
not the only means of achieving that objective." Thompson, 238
- 11 - Ill. 2d at 614, 939 N.E.2d at 414. Finally, the supreme court
held a Rule 431(b) violation "does not implicate a fundamental
right or [a] constitutional protection." Thompson, 238 Ill. 2d
at 614-15, 939 N.E.2d at 414. Instead, a Rule 431(b) violation
"only involves a violation of [supreme court] rules." Thompson,
238 Ill. 2d at 615, 939 N.E.2d at 414.
In this case, the fundamental fairness of defendant’s
trial was not jeopardized by the trial court's error. Prior to
questioning prospective jurors, the court admonished the venire
of three of the four Rule 431(b) principles. In addition,
defense counsel questioned the potential jurors about the fourth
principle. Following closing arguments, the court instructed the
jury on all four principles. Most important, defendant does not
show the jury acted with bias in reaching its verdict. "Despite
the trial court’s failure to comply with Rule 431(b) in this
case, there is no evidence that defendant was tried by a biased
jury." Thompson, 238 Ill. 2d at 611, 939 N.E.2d at 412. Thus,
we conclude the court's voir dire error did not rise to the level
of plain error. Accordingly, defendant has forfeited his Rule
431(b) claim.
B. Closing Arguments
Defendant argues the State improperly commented on
defendant's decision not to testify and his failure to present
evidence during closing arguments.
The statements at issue are as follows:
"What did the defendant do? Well, we
- 12 - have heard testimony from the officer and the
officer testified, hasn't been refuted or
questioned in any way, you haven't heard any
other testimony to refute what the officer
said, and that is that the defendant got out
of the vehicle, turned around and saw the
officer's squad car and proceeded to run.
***
I want to kind of go over the testimony
of the door detail because I think it is
important because what the officer said about
what happened next shows that what happened
here was a deliberate intentional act. It
was definitely a knowing act. There was no
accident here. There hasn't been any one
testify that it was an accident."
Defendant contends the State told the jury "no one"
refuted Officer Chambers and "no one" testified that the door-
slamming incident was an accident. Defendant's characterization
is not entirely accurate. The State actually said "you haven't
heard any other testimony to refute what the officer said."
Improper remarks during closing argument are only
reversible when they cause the defendant substantial prejudice
and affect the defendant's right to an impartial and fair trial.
People v. Ward, 371 Ill. App. 3d 382, 426, 862 N.E.2d 1102, 1144
(2007). When no witness besides defendant could provide evidence
- 13 - contrary to the State's case, the State may argue the evidence is
uncontradicted but may not repeatedly tell the jury "'no one'"
contradicted the State's evidence. People v. Edgecombe, 317 Ill.
App. 3d 615, 620-21, 739 N.E.2d 914, 919-20 (1st Dist. 2000). In
Edgecombe, the State made the following references to the State's
uncontradicted evidence:
"'There has been no evidence whatsoever from
that witness stand that says $60 wasn't taken
***. No one said $60 wasn't taken from them
***'; 'There's no one that got up there that
said anything different ***'; 'There's no one
that got up there and said the defendant was
just standing there ***'; and 'Is there any
evidence that you heard that this guy was
just there? Nobody told you that.'" Edge-
combe, 317 Ill. App. 3d at 621, 739 N.E.2d at
920.
The Edgecombe court found the repeated references to
"'no one'" refuting the testimony "crossed the line" and were
improper comments on the defendant's failure to testify. Edge-
combe, 317 Ill. App. 3d at 621, 739 N.E.2d at 920. Here, the
State used the phrase "no one" once while describing the door-
slamming incident. While the comment was improper, the error did
not deny defendant a fair and impartial trial. The trial court
corrected this error with the following jury instructions: "The
defendant is not required to prove his innocence. The fact that
- 14 - the defendant did not testify must not be considered by you in
any way in arriving at your verdict." Thus, defendant suffered
no prejudice because the jury knew the State was required to
prove the elements of aggravated battery and it was to give no
consideration to defendant's failure to testify.
C. Twelve-Year Sentence
Defendant argues the trial court abused its discretion
in imposing a 12-year sentence for his aggravated-battery convic-
tion. Trial courts are given broad discretion in fashioning
appropriate criminal sentences. People v. Stacey, 193 Ill. 2d
203, 209, 737 N.E.2d 626, 629 (2000). Absent an abuse of the
court's discretion, we will not alter the sentence on review.
Stacey, 193 Ill. 2d at 209-10, 737 N.E.2d at 629.
Here, defendant's aggravated-battery conviction was
elevated to a Class 1 felony because defendant knew the victim
was a peace officer (720 ILCS 5/12-4(e)(3) (West 2006)), render-
ing him eligible for a 4- to 15-year sentence (730 ILCS 5/5-8-
1(a)(4) (West 2006)). Despite defendant's stated remorse for his
actions, the 12-year sentence was appropriate considering defen-
dant's scant rehabilitative potential. Defendant's criminal
record dates back to 1995 when at 18 years old he was first
convicted of unlawful use of a weapon. Since then, defendant has
been convicted of unlawful use of a weapon twice, once as a
felon, manufacturing and delivering narcotics, criminal damage to
property, assault, and numerous traffic violations. The court
observed that at age 31, defendant had amassed 10 felony convic-
- 15 - tions. In 2003, defendant was given a seven-year prison term for
delivery of a controlled substance. While on mandatory super-
vised release in 2007, defendant committed the offenses in the
present case. In light of defendant's penchant for criminal
activity, the trial court did not abuse its discretion in render-
ing the statutorily permissible 12-year sentence.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment. As part of our judgment, we grant the State its $50
statutory assessment against defendant as costs of this appeal.
Affirmed.
- 16 -