People v. Digby

• Court: Appellate Court of Illinois
• Decided: November 24, 2010
• Docket: 1-09-0902 Rel
• Status: Published

Opinion

THIRD DIVISION November 24, 2010

No. 1-09-0902

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) ) JERALD DIGBY, ) Honorable ) Charles P. Burns, Defendant-Appellant. ) Judge Presiding.

PRESIDING JUSTICE QUINN delivered the opinion of the court:

Following a jury trial, defendant Jerald Digby was found

guilty of delivery of a controlled substance and sentenced to

nine years' imprisonment. On appeal, defendant contends that his

conviction should be reversed and his cause remanded for a new

trial because the trial court failed to strictly comply with

Supreme Court Rule 431(b) (Official Reports Advanced Sheet No. 8

(April 11, 2007), R. 431(b), eff. May 1, 2007).

The record shows that defendant was charged with delivery of

a controlled substance in connection with an incident on February

27, 2008, on the north side of Chicago. Defendant elected a jury

trial, and as voir dire began, the trial court addressed the

venire and explained that defendant is presumed to be innocent of

the charge against him and that this presumption is not overcome

unless the jury is convinced from all the evidence in the case

and beyond a reasonable doubt that defendant is guilty. The 1-09-0902

court further explained that defendant is not required to prove

his innocence or present any evidence at all.

The venire was subsequently sworn, and the court advised the

prospective jurors of the questions which would be asked of them

as a group and individually, and the procedure that would be

followed. The court then stated:

"First, I will ask questions of you as a

group. If *** [the answer to] any of these

questions is yes, please raise your hand.

***

Defendant is presumed innocent until the

jury during deliberations determines from all

the evidence that the Defendant is guilty

beyond a reasonable doubt. Does anyone here

have a problem with that presumption? Okay.

No hands raised. Collective answer is no.

The State has the burden of proving the

Defendant guilty beyond a reasonable doubt in

the criminal case. Does anyone disagree with

requiring the State to meet that burden? I

see no hand raised. Collective answer is no.

Defendant does not have to present any

evidence at all in this case. Defendant may

rely upon the presumption of innocence. Does

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anyone have any difficulty with extending the

Defendant that presumption during trial?

Again no hands are raise[d] collective answer

is no.

The Defendant does not have to testify.

Is there anyone who would hold it against the

Defendant if he chose not to testify? Okay.

Again there are no hands raised. Collective

answer is no."

The court then had the clerk read the names of the first 26

potential jurors, and the first 14 were seated in jury box. The

court, however, addressed the 26 members of the venire as

follows:

"I have to ask this question again.

This is about the basic principle of law.

Defendant is presumed innocent until the jury

during deliberations determines from all the

evidence that the Defendant is guilty beyond

a reasonable doubt. Does anyone have a

problem with that presumption? The 26 here

collective answer is no.

The State has the burden of [proving]

the Defendant guilty beyond a reasonable

doubt in a criminal case. Does anyone here

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disagree with the requirement to make that

burden? No hands are raised. Collective

answer is no.

evidence at all. Defendant may rely upon the

presumption of innocen[ce]. Does anyone have

any difficulty extending the Defendant that

presumption during the trial? No hands are

raised. Collective answer is no.

Defendant does not have to testify. Is

there anyone here who would hold it against

the Defendant if he or she chose not to

testify? No hands are raised collective

The trial court further admonished the prospective jurors of

other basic principles of law, followed by individual questions.

After the jury was empaneled, the State presented evidence

that on February 27, 2008, defendant sold crack cocaine to

undercover Chicago police officer Loffredo in exchange for $20.

Officer Goldsmith, who was working as a surveillance officer that

day, observed defendant engage in a brief hand-to-hand exchange

with officer Loffredo at the corner of Argyle and Kenmore

Streets. Officer Loffredo approached defendant and asked him if

he was "straight," a street term meaning, "Are you selling

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narcotics?" Defendant asked the officer what he was looking for,

and Officer Loffredo responded that he was "looking for two,"

which meant that he was looking for $20 worth of narcotics.

Defendant then spit into his hand two plastic bags containing a

white substance and handed them to Officer Loffredo, who gave

defendant $20 in prerecorded funds. After the officer walked

away and gave a positive signal to Officer Goldsmith, he was

picked up by undercover officer Marozas in a covert vehicle,

where he contacted other officers by radio.

Sergeant Hallihan and Officer Baez responded to officer

Loffredo's transmission and drove to that location, Officer

Goldsmith pointed them to 4837 North Kenmore Street, and when

Sergeant Hallihan saw defendant in a basement, defendant put

money in his mouth, chewed and swallowed it. Sergeant Hallihan

and Officer Baez handcuffed defendant and took him out to the

sidewalk where he was identified by Officer Loffredo as the man

who had sold him the narcotics. The sergeant arrested defendant,

and Officer Baez recovered $69 from him. Subsequently, forensic

chemist Jason George conducted tests on the plastic bags sold to

Officer Loffredo and determined that they tested positive for 0.1

gram of cocaine.

After the State rested, the trial court denied defendant's

motion for a directed verdict. The defense presented the

testimony of criminal investigator Friday Clements, who testified

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that he took a picture of a police camera from the corner of

Kenmore and Argyle Streets. The parties stipulated that a police

camera was located at 1101 West Argyle Street on the date of the

incident and that police had no video of the narcotics

transaction.

After closing arguments were presented, the jury was

instructed, in pertinent part, that defendant is presumed

innocent, that the State has the burden of proving him guilty

beyond a reasonable doubt, and that defendant is not required to

prove his innocence. The jury then found defendant guilty of

delivery of a controlled substance, and the trial court sentenced

him as a Class X offender to nine years' imprisonment.

The sole issue in this appeal is whether the trial court

complied with Supreme Court Rule 431(b), as amended in 2007. The

rule requires the trial court to ask each prospective juror,

individually or in a group, whether he or she understands and

accepts that (1) defendant is presumed innocent of the charge

against him; (2) before defendant can be convicted, the State

must prove him guilty beyond a reasonable doubt; (3) defendant is

not required to offer any evidence on his behalf; and (4)

defendant’s failure to testify cannot be held against him.

The supreme court recently addressed the proper application

of this rule in People v. Thompson, 109033, slip op. at 7-13

(October 21, 2010). There, the court held that the rule mandates

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a "specific question and response process," in which the jurors,

either individually or in a group, are asked whether they

understand and accept the enumerated principles. Thompson, slip

op. at 6. The goal of Rule 431(b) questioning is to help ensure

a fair trial and impartial jury. Thompson, slip op. at 9.

In this appeal, defendant does not dispute that the court

addressed each of the four principles with the venire. Rather,

he notes that the court did not use the words "understand" and

"accept," but instead variously asked the jurors whether they

"had a problem" with certain principles, if they "disagreed" with

them, or whether they would hold defendant’s failure to testify

against him. Defendant argues that this language was

insufficient to satisfy the rule’s requirement that each juror be

questioned as to his or her understanding and acceptance of the

enumerated principles. He also complains that the court’s

request for a show of hands was insufficient to ascertain the

jurors’ responses. For the following reasons, we find that the

court’s questioning complied with Rule 431(b).

This court has held that Rule 431(b) does not dictate a

particular methodology for establishing the venire’s

understanding or acceptance of those principles. People v.

Vargas, 396 Ill. App. 3d 465, 472 (2009). In doing so, we have

noted that this rule does not set out principles in the form of

questions to be asked in haec verba, and does not provide

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" 'magic words' " or " 'catechism' " to ensure the court’s

compliance. Vargas, 396 Ill. App. 3d at 472. For example, in

People v. Ingram, 401 Ill. App. 3d 382, 393 (2010), we held that

the trial court met the requirements of Rule 431(b) where it

admonished the potential jurors en masse of the four principles,

then asked them whether they had any " 'difficulty or quarrel' "

with each of the four principles. We have also found compliance

where the court asked the venire whether each juror would hold

defendant’s decision against him if he decided not to testify.

People v. Strickland, 399 Ill. App. 3d 590, 603-04 (2010).

We find no substantive difference in this case, where the

venire members were asked if they "had a problem" with the

presumption that defendant is innocent, if they "disagreed" with

the State’s burden of proving defendant guilty, and if they would

hold defendant’s failure to testify "against" him. Although the

court did not use the precise language of Rule 431(b), the words

it did use were appropriate and clearly indicated to the

prospective jurors that the court was asking them whether they

understood and accepted the principles enumerated in the rule.

Nor are we persuaded that the court violated the rule by

questioning the jurors collectively and asking for their response

through a show of hands. Defendant argues that, to ensure

compliance with Rule 431(b), the court should address each juror

individually with respect to the four principles and require the

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juror to respond yes or no to (1) whether the juror understands

the principle and (2) whether the juror accepts the principle.

We reject this argument based on the supreme court’s holding in

Thompson that the court may perform the questioning in a group,

as long as each juror is given an "opportunity" to respond.

Thompson, slip op. at 6. If the supreme court intended to

require a verbal response from each juror, it would have said so.

Instead, it held that an opportunity to respond was sufficient,

implicitly recognizing that the juror may forgo that opportunity

and indicate his agreement with the stated principle by remaining

silent. Finally, asking for a show of hands is a commonly

accepted method of eliciting a response from a group of people.

We find nothing inherently unreliable in this practice.

Moreover, even if we were to find that the court violated

Rule 431(b), defendant would fare no better. It is undisputed

that defendant forfeited this issue by failing to object at trial

and to raise the issue in a posttrial motion. People v.

Piatkowski, 225 Ill. 2d 551, 564 (2007). The supreme court in

Thompson held that a violation of the rule is not structural

error requiring automatic reversal. Thompson, slip op. at 9-10.

Nor does it satisfy the second prong of the plain error analysis,

which allows review of errors that affect the fairness of the

trial and challenge the integrity of the judicial process.

Thompson, slip op. at 11-12. Instead, the supreme court

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recognized that "the failure to conduct Rule 431(b) questioning

does not necessarily result in a biased jury ***." Thompson,

slip op. at 12. "Although the [2007] amendment to the rule

serves to promote the selection of an impartial jury by making

the questioning mandatory, Rule 431(b) questioning is only one

method of helping to ensure the selection of an impartial jury."

Thompson, slip op. at 12. The Thompson court went on to find

that, despite the fact that the trial court violated Rule 431(b)

by completely failing to question the jurors on one of the

principles and not asking whether they accepted another,

defendant was unable to show that the violation "resulted in a

biased jury." Thompson, slip op. at 13. Accordingly, the court

refused to excuse defendant’s forfeiture of the issue.

The same result would maintain here, where the alleged

noncompliance with the rule did not rise to the level of the

defects considered in Thompson. As stated above, we find that

the court’s questioning complied with Rule 431(b), and there is

no indication in the record that its failure to use the precise

verbiage of the rule resulted in a biased jury. Under these

circumstances, defendant’s claim is forfeited.

For the foregoing reasons, we affirm the judgment of the

circuit court of Cook County.

Affirmed.

MURPHY and STEELE, JJ., concur.

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