FIRST DIVISION March 31, 2011
No. 1-07-2229
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court Plaintiff-Appellee, ) of Cook County. ) v. ) No. 04 CR 17334 ) BRENETTA INGRAM, ) Honorable ) Stanley J. Sacks, Defendant-Appellant. ) Judge Presiding.
JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Justice Garcia specially concurred, with opinion, joined by Presiding Justice Hall.
O P I N I O N
In compliance with the supreme court’s supervisory order, we
have vacated our prior judgment in People v. Ingram, 401 Ill.
App. 3d 382, 928 N.E.2d 1205 (2010) and reconsidered this case in
light of People v. Thompson, 238 Ill. 2d 598, 939 N.E.2d 403
(2010). See People v. Ingram, 239 Ill. 2d 569, 940 N.E.2d 1154
(2011).
A jury convicted defendant, Brenetta Ingram, of first degree
murder. Defendant contends she is entitled to a new trial
because the trial court failed to comply with Supreme Court Rule 1-07-2229
431(b) (Ill. S. Ct. R. 431(b) (eff. May 1, 2007)). Defendant
also contends the trial court interfered with her right to a fair
and impartial jury during jury selection. Defendant finally
contends the trial court erred by refusing to issue a jury
instruction for second degree murder based on a sudden and
intense passion resulting from serious provocation. We affirm.
FACTS
In June 2004, defendant had been staying at the apartment of
the victim, Raymond Greene, with her daughter, Latasha, and her
daughter’s boyfriend, Shaun Patterson, for several months. In
the early morning hours of June 17, 2004, defendant learned that
the victim planned to evict her from his apartment. Defendant
became upset and participated in the stabbing and beating death
of the victim in his apartment.
At trial, Detective Patrick Golden testified that he
interviewed defendant on June 17, 2004. Defendant said that,
early on that date, she was standing on the corner of Chicago
Avenue and Hamlin Avenue in Chicago, Illinois, with Latasha,
Patterson, and defendant’s boyfriend, Walter Willis. Willis told
the group that the victim owed him $50 to $60. Willis then left
to retrieve the money from the victim. Willis later returned to
the corner where the rest of the group remained. Willis reported
that he went to the victim’s nearby apartment located at 3804 W.
Chicago Avenue, Chicago, Illinois, but the victim refused to
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repay the debt. Willis further reported that the victim was
angry and planned to no longer allow defendant, Latasha, and
Patterson to stay at the victim’s apartment. Defendant said she
became upset when she heard the news. Jimmie Booker then
approached the group. Defendant informed Booker that the victim
intended to evict defendant, Latasha, and Patterson.
Defendant said she, Booker, Latasha, and Patterson left the
corner and went to the victim’s apartment. Latasha knocked on
the rear door of the victim’s second-floor apartment. When the
victim opened the door, Latasha stepped to the side and Booker
pushed the door open. The group entered the apartment and the
victim demanded they leave. When they refused, the victim
grabbed a baseball bat and swung it at defendant and Booker, but
missed them. Defendant responded, “oh no, you are not going to
hit me with that bat.”
Booker and the victim then began struggling with the bat.
Booker eventually gained control of the bat and told defendant he
needed help fighting the victim. Defendant retrieved a knife
from the kitchen sink and repeatedly stabbed the victim in the
shoulders and back while the victim shouted, “I’m sorry. I’m
sorry. Stop. Stop.” The knife was approximately 8 to 10 inches
long. Meanwhile, Booker repeatedly struck the victim with the
bat. At some point, Booker dropped the bat and picked up a steel
shovel. Booker then repeatedly hit the victim in the head and
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body with the shovel. The victim fell into a chair, begging
defendant and Booker to stop hitting him. The victim then
crawled on his hands and knees out his back door to an attached
porch. Defendant followed, repeatedly hitting him with a wooden
stick that she found. The victim eventually collapsed,
motionless on the rear porch.
When they were finished, defendant and Booker changed out of
their bloodstained clothes and defendant changed out of her
bloodstained shoes. They left the bloodstained items at the
apartment. Defendant, Booker, Latasha, and Patterson took some
of the victim’s belongings, including a television, a microwave
oven, and a radio, and stashed the items several blocks from the
apartment in a cinder-block structure with the intention to
retrieve them later. The group then split up. Later that
morning, defendant learned the victim had died.
Golden further testified that, after the interview
concluded, he instructed other detectives to photograph the
victim’s apartment and collect the bloodstained clothing
defendant and Booker had left behind. Defendant, Latasha, and
Patterson consented to giving biological samples. Golden and his
partner went to the cinder-block structure described by
defendant. Nothing was found there. Golden and his partner
returned to the police station and Golden called the State’s
Attorney’s office. Around 10:45 p.m., Assistant State’s
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Attorneys (ASAs) Robert Robertson and Christine Frenzel arrived
at the police station. Golden was present when the ASAs
interviewed defendant. Defendant agreed to have her statement
videotaped.
ASA Robertson testified that, when he first arrived at the
police station on June 17, 2004, he spoke with Detectives Golden
and Kevin Bore and reviewed the relevant police reports. ASA
Robertson then interviewed defendant. The interview lasted
approximately 30 minutes. Defendant described the events that
transpired consistently with what she reported to the police.
ASA Robertson also interviewed Latasha, Patterson, and Willis.
After interviewing them, he returned to the room where defendant
was located and ASA Frenzel took her videotaped statement. In
addition, Latasha agreed to memorialize her witness statement.
ASA Robertson took Latasha’s handwritten statement. Afterward,
ASA Robertson reviewed the statement with Latasha, and Latasha
signed the bottom of each page of the statement.
ASA Frenzel testified that ASA Robertson conducted the
initial interview of defendant and ASA Frenzel took defendant’s
videotaped statement. The videotaped statement was published to
the jury.
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In the videotaped statement,1 defendant said she, Latasha,
Patterson, and Booker went to the victim’s apartment after Willis
said the victim refused to repay the debt and planned to evict
defendant, Latasha, and Patterson from his apartment. The group
climbed the back stairs to the victim’s second-floor door and
Latasha knocked. When the victim opened the door, Booker pushed
his way inside and the rest of the group followed. The victim
told Booker to leave, but Booker refused. The victim picked up a
baseball bat and swung it. Defendant said the bat nearly hit
her. Booker told the victim, “I’m not gonna let you hit
[defendant].” Then, Booker attempted to gain control of the bat
from the victim. Booker said, “don’t let him get me, hit him,”
so defendant retrieved a “butcher” knife from the kitchen. The
blade of the knife was approximately one foot long. Defendant
stabbed the victim “several times” in the back, neck, and
shoulder area. Meanwhile, Booker gained control of the bat and
hit the victim with it. The victim retreated to a chair and sat
down. He pleaded, “please, I’m sorry, stop, yes.” At that time,
Booker was hitting the victim with a shovel that he found behind
the refrigerator. The victim then fell to the floor.
1 At the time, defendant was wearing a paper suit because her
clothes were undergoing DNA testing. Defendant was given a
jacket to wear because the room was cold.
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According to defendant’s videotaped statement, Latasha
gathered her “things” and Patterson grabbed his radio and
“stuff.” Latasha and Patterson left the apartment. Defendant
said “there was blood everywhere,” so she and Booker changed
their clothes. Booker told defendant that he was “gonna take the
TV and stuff.” Booker took the bedroom television and handed
Patterson, who had reappeared, the microwave to carry out of the
apartment. Booker gave defendant a radio, which she kept.
Booker told defendant he intended to sell the other items. He
said he would give defendant some of the profit. At that point,
the victim was on the floor in the kitchen and began crawling
toward the back porch. When the victim was on the back porch,
defendant hit him with a stick. She described the stick as four
feet long, two inches thick, and two inches wide. Defendant said
“it must have come out the paneling of the door when they were
fighting or somewhere in the kitchen area.” Defendant was the
last person to vacate the apartment and porch.
The group went to a nearby “vacant lot with a gray wooden
little house with a[n] entrance window.” Booker placed the
victim’s items in the “house.” The group then split up.
Defendant said she went out drinking. Later, defendant saw
Booker with the victim’s items in a shopping cart. She never saw
the items after that. Defendant called Willis and told him what
occurred at the victim’s apartment. She reported that the victim
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was hurt. Defendant also told her godmother and Herman Johnson
about the events that transpired at the victim’s apartment. She
admitted she stabbed the victim. Defendant knew the police were
looking for her. Defendant said she planned to turn herself in.
Defendant, however, wanted to wait to do so until she saw Willis.
Willis arrived that afternoon and the police arrived shortly
thereafter to arrest her.
Defendant admitted that, when she left the apartment, she
knew the victim was hurt. Defendant said the victim was
bleeding. Defendant, however, did not call the police or an
ambulance.
On July 3, 2004, Booker was brought to the police station.
Golden interviewed him. Booker consented to give a biological
sample.
Latasha, who was in custody on a contempt charge for failing
to comply with a subpoena, testified that around 9 p.m. or
10 p.m. on June 16, 2004, she was standing near a corner on
Chicago Avenue with defendant, Patterson, and Willis. At the
time, she, defendant, and Patterson were staying with the victim
in his apartment located across the street from where they were
standing. Defendant told Patterson to go to the victim’s
apartment to retrieve his belongings because the victim was
evicting them. Defendant, who was “a little tipsy and drunk,”
said she was going to confront the victim regarding rent money
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that she had paid. Defendant and Patterson left the corner to go
to the victim’s apartment.
Approximately 15 to 20 minutes later, Latasha walked over to
the victim’s apartment. She noticed defendant, Patterson,
Willis, and Booker standing on the stairs leading to the back
porch of the victim’s second-floor apartment. Willis left the
area and defendant, Patterson, and Booker began knocking on the
victim’s door. The victim opened the door and told defendant she
was not welcome inside. The victim closed the door, but then
opened it when Latasha knocked. The victim instructed the group
to retrieve their belongings, and all four of them entered the
victim’s apartment. Latasha and Patterson quickly grabbed their
belongings from the living room. On her way out of the
apartment, Latasha heard defendant arguing with the victim. She
did not witness any physical fighting. Patterson left the
apartment with Latasha. They both went to Latasha’s father’s
house about three blocks away. Latasha did not see defendant
again that night.
The next day, June 17, 2004, at about 7 a.m. or 8 a.m., she
and Patterson were approached by the police. They went to the
police station, where she spoke to Detective Golden and his
partner. Latasha reported that, on the day in question,
defendant knocked on the victim’s door and Booker pushed the door
open to gain entry. Latasha told the detectives that the victim
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asked everybody to leave. While she was gathering her
belongings, Latasha witnessed Booker and the victim wrestling for
control of a baseball bat. Booker obtained control and struck
the victim with it. Latasha further told the detectives that
defendant retrieved a shovel and beat the victim three or four
times with it, while Booker was striking the victim with the bat.
Latasha also said she heard the victim scream, “please stop. I
am sorry!” and saw him crawl onto his rear porch. Defendant said
she was going to kill the victim.
Latasha further testified that she was interviewed by ASA
Robertson. Latasha admitted she told ASA Robertson that, prior
to going to the victim’s apartment, defendant was angry.
Defendant said she was going to get “one of her boys to beat [the
victim’s] a***.” Latasha told ASA Robertson that she was outside
the victim’s apartment when defendant exited. Defendant had
changed into different clothes from what she was wearing when
they first arrived at the apartment.
Latasha admitted that she testified before the grand jury on
June 18, 2004. At trial, Latasha testified that Patterson left
the victim’s apartment with his own radio. However, Latasha
admitted that she testified before the grand jury that the radio
was the victim’s. During her grand jury testimony, Latasha said
defendant took some of the victim’s belongings. Latasha also
told the grand jury that she saw her mother hit the victim with a
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“long brown stick.” Latasha admitted that she told the
detectives and the grand jury that, while defendant was hitting
the victim with the shovel, she heard defendant yelling, “I am
going to kill you.”
On cross-examination, Latasha testified that, when she was
interviewed by defense counsel prior to trial, she said defendant
was protecting herself from the victim at the time in question.
During that pretrial meeting, Latasha said the victim grabbed
defendant and defendant responded by hitting and kicking him to
break free.
Detectives and evidence technicians collectively testified
that the victim was found face down on his second-floor porch.
He was surrounded by blood. Blood was found on the ground
underneath the porch where it had poured through from above. A
shovel was found near the landing to the second-floor porch. A
serrated kitchen knife was found underneath the shovel. A butter
knife was found by the victim’s right hand. Inside, the
apartment was in complete disarray. Bloodstains were found in a
number of places, including on the stove and a countertop. The
police recovered the following bloodstained items: a black pot, a
black pair of shoes, a denture retainer, a blue shirt, a yellow
shirt, a white shirt, a piece of wood measuring four feet in
length, a baseball bat, the butter knife, the serrated knife, and
the shovel.
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Officer Nick Ribaudo, an evidence technician, testified that
he photographed defendant at the police station. Defendant had a
small cut on her pinky finger and a cut on the bottom of her
foot. Ribaudo said he collected defendant’s bra and denim
shorts, along with Patterson’s clothes.
Lynette Wilson, a forensic scientist, testified that she
tested a number of items for the presence of blood. Blood was
found on defendant’s bra and jean shorts, Patterson’s tank top,
Booker’s shoes, the baseball bat, the piece of wood, the shovel,
and the large serrated knife. The butter knife was not tested.
Ashlee Fulmer, a deoxyribonucleic acid (DNA) expert,
testified that she analyzed the blood found on defendant’s
shorts, Patterson’s tank top, and Booker’s shoes. The blood on
defendant’s shorts matched the victim’s DNA. The blood on
Booker’s shoes matched his own DNA. The blood on Patterson’s
tank top matched his own DNA.
Doctor Mitra Kalelkar, a medical examiner, testified that
she performed the victim’s autopsy. Kalelkar said the victim
sustained 16 groups of injuries to his face and head, 3 injuries
to the neck, 15 injuries to his trunk, 18 injuries to his upper
extremities, and 6 injuries to his lower extremities. The
injuries included abrasions, stab wounds, contusions, and
lacerations. Kalelkar’s internal examination revealed multiple
hemorrhages beneath the scalp and a fractured skull.
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Kalelkar testified that the wounds on the victim’s head were
consistent with blunt force trauma using a shovel or a similar
object. The victim’s stab or incised wounds were consistent with
the serrated knife found on the scene. The victim’s scrapes and
abrasions could have been caused by the butter knife found on the
scene. The victim’s rectangular-shaped injuries were consistent
with the recovered piece of wood. The recovered pot handle was a
blunt object that could have caused abrasions, scrapes, or
bruises. Kalelkar opined that the victim’s injuries were also
consistent with being hit by a bat or any blunt object. The
victim’s abrasions were consistent with someone crawling over a
rough surface like wood or concrete. According to Kalelkar,
considerable force is required to fracture a skull. Moreover, a
fractured skull results in the loss of a large amount of blood.
Kalelkar opined that the victim died as a result of multiple
blunt force and shock force injuries. Kalkelkar added that she
found a presence of a cocaine metabolite in the victim’s blood.
The defense did not present any evidence. Defense counsel
argued that defendant was acting in self defense when she struck
the victim.
The jury found defendant guilty of first degree murder and
not guilty of armed robbery. Defendant was sentenced to 45
years’ imprisonment.
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DECISION
I. Rule 431(b)
Defendant contends she was denied her right to a fair and
impartial jury because the trial court failed to comply with
Supreme Court Rule 431(b).
We review a trial court’s compliance with a supreme court
rule de novo. People v. Lloyd, 338 Ill. App. 3d 379, 384, 788
N.E.2d 1169 (2003).
Defendant concedes she failed to preserve her contention for
purposes of our review by failing to object to the Rule 431(b)
error. 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). Defendant, however, requests that we review
the error under the plain error doctrine pursuant to Supreme
Court Rule 615(a) (Ill. S. Ct. R. 615(a)).
The plain error doctrine allows us to review an issue
affecting substantial rights despite forfeiture in either of two
circumstances:
“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
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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).
Relying on the second Herron circumstance, defendant claims the
trial court’s failure to comply with Rule 431(b) denied her the
basic guarantees for obtaining a fair and impartial jury. In
order to conduct a plain error analysis, we must first determine
whether error occurred. People v. Sims, 192 Ill. 2d 592, 621,
736 N.E.2d 1048 (2000).
Jury selection in this case began on June 25, 2007. Supreme
Court Rule 431(b) was amended effective May 1, 2007. The amended
rule places a sua sponte duty on trial courts to ensure
compliance with Rule 431(b). Thompson, 238 Ill. 2d at 607. The
amended rule 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
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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.
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.) Ill. S. Ct. R. 431(b) (eff. May 1,
2007).
In his opening remarks, the judge here said:
“Under the law, [defendant] is presumed innocent
of the charges against her, and that presumption
remains with her throughout every stage of the trial,
and during your deliberations on your verdict, and is
not overcome unless from all the evidence, you are
convinced beyond a reasonable doubt that she is guilty.
The State in this case *** has the burden to prove
the guilt beyond a reasonable doubt, and that burden
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remains on the State throughout the entire case. The
[d]efendant is not required to prove to you that she’s
innocent of the charges against her, nor is she
required to present any evidence on her own behalf, so
she can rely on the presumption of innocence.”
Later, the judge continued:
“During the course of the trial, and more so at
the end of it, I will tell you what the law is that
applies to the case of People v. Brenetta Ingram. You
as jurors are required to follow and obey the law, even
in circumstances where you might say to yourself I
personally disagree with it.
Anybody have any difficulty, any of the jurors out
there, any problem following and obeying the law in
this case?
Anybody think they have a problem following the
law in the case of [defendant]?
No response to that question either.
There are certain things that apply in a criminal
case, certain principles that apply to the case of
[defendant] I will mention to you at this point.
One of those principles is the [d]efendant *** is
presumed innocent of the charges against her, and that
presumption remains with [defendant] throughout the
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entire trial and is not overcome unless by your
verdicts in the case, you conclude the State has proven
[defendant] guilty beyond a reasonable doubt.
Does anybody have any difficulty or quarrel with
the principle that [defendant] is presumed innocent of
the charges against her and the State is required to
prove her guilt beyond a reasonable doubt?
Again no response.
As part of the last question I just read to you,
it should be obvious to you that the State in this case
*** has the burden of proving the guilt of the
[d]efendant beyond a reasonable doubt and that burden
is on the State throughout the entire trial. The
innocent of the charges against her.
the principle the State is required to prove
[d]efendant guilty beyond a reasonable doubt, the
[d]efendant is required to prove nothing?
And again, no response.
And in conjunction with those two principles, they
all kind of go hand in hand together is that
[d]efendant *** has the right to remain silent. She
may choose sitting right here throughout the course of
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the entire trial, and not testify on her own behalf,
and rely upon the presumption of innocence.
If that event should happen to occur, you as
jurors can draw no inference for the fact she chooses
to remain silent in favor of [defendant] or against
[defendant] if she chooses to remain silent.
the principle an accused person has the absolute right
to remain silent and not testify?
If at the close of all the evidence in the case,
any arguments by the lawyers, and instructions by me,
you come to the conclusion that the State has proven
the charge against [defendant] beyond a reasonable
doubt, under those circumstances, anybody have any
difficulty or quarrel with signing a verdict form which
would say guilty?
No hands.
The other side of the coin equally applies, at the
end of all the evidence in this case, arguments by the
lawyers, instructions by me, you come to the conclusion
that the State has failed to prove beyond a reasonable
doubt to your satisfaction the charge against
[defendant], under those circumstances, anybody have
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any problem signing a verdict form which would say not
guilty?
Again no response.”
Then, while reading the jury instructions to the jurors after the
close of evidence, the judge said:
“The defendant is presumed to be innocent of the
charges against him of first degree murder type B and
armed robbery. This presumption remains with him
throughout every stage of the trial and during your
deliberations on the verdict, and is not overcome
unless from all the evidence in this case you are
convinced beyond a reasonable doubt that he is guilty.
The State has the burden of proving the guilty
[sic] 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 defendant is presumed to be innocent of the
charges against him of first degree murder, type A.
This presumption remains with him throughout every
stage of the trial and during your deliberations on the
verdict and is not overcome unless from all the
evidence in this case you are convinced beyond a
reasonable doubt that the defendant is not guilty.
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The State has the burden of proving the defendant
is guilty of first degree murder, type A, and this
burden remains on the State throughout the case. The
defendant is not required to prove his innocence.
The fact that the defendant did not testify must
not be considered by you in any way in arriving at your
verdict.”
Defendant contends the trial court erred by failing to
expressly inquire whether the venire understood and accepted that
defendant need not present evidence in her defense and failing to
provide the venire members with an opportunity to indicate their
understanding and acceptance of that principle. We disagree.
We are mindful that the supreme court rules are not
aspirational but, rather, must be “obeyed and enforced as
written.” Bright v. Dicke, 166 Ill. 2d 204, 210, 652 N.E.2d 275
(1995). However, compliance with Rule 431(b) is not dictated by
specific language. “Importantly, the rule speaks of ‘principles’
instead of questions. Likewise, the rule does not set out these
principles in the form of questions to be posed in haec verba.
Nor does the rule provide for any ‘magic words’ or ‘catechism’ in
order to satisfy its mandate.” People v. Vargas, 396 Ill. App.
3d 465, 472, 469 N.E.2d 1062 (2009), judgment vacated, 239 Ill.
2d 584, 940 N.E.2d 1149 (2011) (table) (on January 26, 2011, the
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supreme court issued a supervisory order instructing this court
to vacate its judgment and reconsider the case in light of
Thompson); People v. Ware, No. 1-09-0338, slip op. at 64 (Ill.
App. Feb. 10, 2011) (“we do not believe there is special magic
language that needs to be used to show whether a prospective
juror understands and accepts the four Zehr principles”).
There is no dispute that the entire venire was advised of
each of the four principles codified by Rule 431(b) and announced
in People v. Zehr, 103 Ill. 2d 472 (1984). The venire members
were later asked whether they had “any difficulty or quarrel with
the principle” that defendant was presumed innocent, the State
had the burden of proof, and defendant’s decision not to testify
could not be held against her. The judge did not expressly ask
whether the venire members had “any difficulty or quarrel with
the principle” that defendant need not present any evidence.
Nevertheless, while explaining the burden of proof and
establishing the venire members’ understanding and acceptance of
that principle, the judge said “the [d]efendant is not required
to prove to you that she [is] innocent of the charges against
her. Does anybody have any difficulty or quarrel with the
principle the State is required to prove [d]efendant guilty
beyond a reasonable doubt, the [d]efendant is required to prove
nothing?” Then, while establishing the venire’s understanding
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and acceptance that no adverse influence could result from
defendant’s decision whether to testify, the judge said defendant
could rely on the presumption of innocence. Furthermore, while
reading the jury instructions at the close of evidence, the trial
judge readvised the empaneled jurors that “the defendant is not
required to prove his innocence.”
We recognize that jury instructions will not cure existing
prejudice against any of the Zehr principles (Id. at 477);
however, taken in conjunction with the admonishments and
interrogations completed during voir dire, the trial judge
complied with the dictates of Rule 431(b). We find that, by
informing the venire that the defendant is not required to prove
that she is innocent of the charges and that she is not required
to prove anything, the trial court sufficiently ensured the
venire understood and accepted that defendant was not required to
provide evidence on her own behalf. Therefore, no error
occurred.
We conclude that defendant cannot maintain her contention.
II. Judicial Interference With Jury Selection
Defendant contends the trial judge interfered with the
selection of an unbiased jury when he warned panel members that
they would be penalized if they changed their answers on their
jury summons cards. The State responds that defendant failed to
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preserve her contention for our review because she did not object
to the alleged erroneous conduct during trial and did not include
it in a posttrial motion. In the alternative, the State contends
the trial judge did not abuse his discretion by making humorous
remarks during jury selection.
Defendant concedes that she did not preserve her contention.
As stated, we may review a forfeited error under the doctrine of
plain error when (1) the evidence was close, regardless of the
seriousness of the offense; or (2) the error was so serious as to
deny a substantial right, and thus a fair trial, that the
closeness of the evidence does not matter. Herron, 215 Ill. 2d
at 178-79. We first must review whether error occurred.
Sims, 192 Ill. 2d at 621.
The manner and scope of voir dire are within the discretion
of the trial judge. People v. Williams, 164 Ill. 2d 1, 16, 645
N.E.2d 844 (1994). “The purpose of voir dire is to assure the
selection of an impartial panel of jurors free from either bias
or prejudice.” Id. at 16. We will find the trial judge abused
his discretion in conducting voir dire only where the judge’s
conduct “thwarted the selection of an impartial jury.” Id.
We now turn to defendant’s substantive argument to determine
whether the trial judge erred. During his opening remarks, the
trial judge said:
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“In order to determine your qualifications as
jurors in this case, I’m going to ask you certain
questions about yourselves. The lawyers can ask you
questions thereafter if they’d like to do that also.
The questions that we ask you are not designed to
pry in your private life or embarrass you. They are
designed to afford the lawyers a chance to find out
about you personally so they can be informed during the
jury selection process.
We ask you to be frank, complete, and open in all
your answers. That’s how we ensure fairness to both
sides.”
While explaining a specific question asked on the jury
summons card, the judge said:
“If you were arrested for something other than
minor traffic, but you put down no, because you weren’t
quite sure what Question No. 10 meant, now that you
know, you will tell us.
And that arrest could have been here in Chicago,
anywhere in Illinois, some other state, some other
country, anywhere.
We are not going to delve into the embarrassing
details. We think we are entitled to know the answer
to that question, however.
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If you put down no, you can change it to yes.”
Later, the trial judge added:
“At this point, before we start actually, just so
you have in mind, we all know we are here for a very
serious purpose obviously. My mother used to always
tell me, great lady that she was, there is a time to
laugh and a time to cry.
She did not mean that literally. What she meant
was time to make things light, time to take things
seriously. We know when those times are. You will
know when those times are.
I don’t want you sitting with us three or four
days glum from the time you first walk in and glum
until you walk out. So there may be a time during the
course of your duties, proceedings today or tomorrow,
next day, next day, whatever, I may say something I
think might be somewhat humorous, you agree, you want
to laugh, snicker, feel free to do [so].
If you don’t think it’s humorous, don’t laugh just
on my account. I’m not doing that to demean the reason
we are here. We all know we are here for a very
serious purpose and that should be obvious, but if I
can lighten your load for you a little bit, I might try
and lighten your load for a little bit. It doesn’t
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take way from the reason we are all here however.”
Defendant specifically takes issue with exchanges the trial
judge had with four jurors after they revealed they needed to
change an answer on their jury summons cards. Prior to and
between the exchanges in question, the trial judge asked the
appropriate2 venire members, “[q]uestions 9 through 16, all your
answers are no. Any out of those you want to change in any way?”
The first exchange in question was with venire member Passantino:
“Q. Questions 9 through 16, all your answers were
no. Any answer out of those you want to change in any
way?
A. Well, I was the victim of having my car stolen.
Q. How long ago was that?
A. Six years ago.
Q. Was anybody arrested or charged as far as you
know of?
A. No.
Q. Anything about that circumstance make you think
you couldn’t be fair to both sides in this case at all?
2 The judge did not ask the question when the venire member
answered yes to the relevant questions on his or her jury summons
card.
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Q. Anything else you wanted to change of those
questions?
Q. Did they tell you what happened to you if you
changed an answer? When you change an answer on these
forms, did they tell you what happens, when you change
an answer?
A. Well, I thought about it.
Q. Did they tell you what happens when you change
Q. You lose half your check.
A. Oh, that’s all right.
Q. So instead of getting $17.20, you get $8.60.
You can live with that?
A. I can live with that.”
Voir dire continued. The second exchange in question was with
venire member Hardy:
“Q. Someone in your immediate family party to a
lawsuit one time or another as well. Who are we talking about
there? The clock is ticking. You are going to lose half your
money.
A. My brother was.”
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After voir dire of the first panel was completed, the State
informed defense counsel and the judge that venire member Hardy
did not admit a 1986 arrest in Los Angeles, California. Venire
member Hardy was recalled to chambers for the following exchange:
“Q. On your jury card on Question No. 10 was the
one I indicated earlier today, the one have you been
accused, complainant, or witness in a criminal case,
you put down no. Was there a time going back aways
[sic], maybe 1986 in Los Angeles?
A. Oh yeah.
Q. You were arrested for inflicting corporal
punishment on a spouse or cohabitant?
A. Yes.
Q. You didn’t mention it. Some reason you didn’t
mention it?
A. I didn’t know. Like I didn’t get–-I didn’t
figure I was arrested.
Q. There was no complaint ever filed on the case,
right?
Q. So that’s why you didn’t mention it, nothing
ever happened out of it?
A. Right.”
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The defense excused venire members Passantino and Hardy.
Voir dire continued with the second panel of venire members.
The third exchange in question was with venire member Johnson:
“Q. Victim of a crime, you answered yes, refers to
what, Mr. Johnson?
A. My house was burgled.
Q. You got the word right. Where did you here
that from? How long ago was the house burgled?
A. That was 1983 or ‘84.
Q. That wouldn’t affect you if [you were] a juror
in this case, would it?
Q. Someone in your immediate family, very close
friend, victim of crime, who does that apply to?
A. Victim?
Q. Victim, someone in your immediate family or
very close friend, victim of a crime?
A. That was me.
Q. Okay. So we’ve go to change your answer you
put that down that was this talks about immediate
family or close friend, so that answer is wrong about
close friend?
A. Oh, no.
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Q. So you lose half your check. You understand
that?
A. I have already got it. That’s possession nine-
tenths of the law.
Q. All we do is put down stop payment. Party to a
lawsuit at one time or another. What kind of lawsuit
would that have been?
A. I filed, was part of a lawsuit against the
Illinois Federation of Teachers.
Q. A long time ago?
A. Long time ago. It was a dispute.
Q. Involved in an accident where somebody was
injured, auto accident of some sort?
Q. How long ago would you say that was?
A. Let’s see, that was in 1966.
Q. Okay. Just a little kid back then, weren’t
you?
A. Liked to say so.”
The defense excused venire member Johnson.
Voir dire continued with the third panel of venire members.
The fourth exchange in question was with venire member Carney:
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what?
A. My wallet was stolen.
Q. How long ago?
A. 18 years ago.
Q. 18 years ago?
A. Yeah.
Q. That would not affect you if you were a juror
Q. Someone in your immediate family, at least very
close friend, victim of a crime also. Who were you
talking about there?
A. I wrote yes. I didn’t mean to.
Q. You understand the consequences?
A. I will give it back. Okay.
Q. I gave you the check already?
A. Yes.”
Venire member Carney was excused because the jury had been
filled.
An exchange not challenged by defendant, but that gives
additional context to the tone of voir dire was with venire
member Korzum:
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“Q. Questions 9 though 15, all answers were no.
Any answer you want to change in any way?
injured; auto accident of some sort involved in an
accident?
A. I don’t even remember answering that question.
Q. Have you ever been involved in an accident
where somebody was injured, you answered yes. Should
that be no?
A. Yeah. That would be no.
A. You can take it back.”
Yet another elucidating exchange occurred with venire member
Paquette:
“Q. Questions 9 through 16, Miss Paquette, all
your answers were no. Any answer of those you want to
change in any way?
A. No. 14
Q. Someone in your immediate family a party to a
lawsuit at one time or another?
Q. Who was that?
A. My brother.
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Q. And what kind of lawsuit would that have been?
A. Criminal.
Q. How was he involved in a criminal lawsuit?
A. He was the – he was being charged with
something.
Q. How long ago was that would you say?
A. Three years ago.
Q. That’s not pending anywhere now?
A. I don’t think so.
Q. That wouldn’t affect you if you were a juror,
would it?
A. No.”
It is clear from our review of the record that the trial
judge was imparting humor into the proceedings when he
“threatened” the loss of the jurors’ earnings. Nevertheless, the
venire members in the challenged exchanges were all excused from
the jury pool. Moreover, contrary to defendant’s claim, the
responses of the challenged venire members, as well as the
remaining venire members, demonstrate they were not intimated by
the judge’s comments. The record reveals the venire members
continued to verbally change their incorrect answers from their
written jury summons cards. The trial judge encouraged as much
in his opening remarks by telling the venire members that their
voir dire responses should be “frank, complete, and open,” while
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expressly noting that the jurors should change incorrect
responses to a particularly confusing question from the jury
summons card. Then, during each individual voir dire, the trial
judge provided each venire member an opportunity to change his or
her answers by specifically inquiring whether he or she wanted to
change any answer in any way. We find no evidence that the trial
judge “thwarted the selection of an impartial jury.” Williams,
164 Ill. 2d at 16. Therefore, the trial judge did not abuse his
discretion and there was no error. We need not conduct a plain
error analysis; forfeiture applies to defendant’s contention.
Defendant’s reliance on People v. Brown, 388 Ill. App. 3d 1,
903 N.E.2d 863 (2009), is misplaced. In Brown, the trial judge
reluctantly excused a potential juror who said he could not be
fair and impartial to the defense in a drug-related trial because
of past drug-related experiences. Id. at 2-3. The trial judge,
however, instructed the potential juror to return to court the
next day to receive “ ‘an education as to how the system
works.’ ” Id. at 3. The questions in Brown were whether the
defendant forfeited his claim and whether the trial judge abused
her discretion by punishing the potential juror. This court
applied forfeiture and held that, while “the exchange was
unnecessary in the way it occurred,” there was no evidence that
the trial judge thwarted the selection of an impartial jury. Id.
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at 5, 10-11.
The facts of the case here are distinguishable. The trial
judge’s tone was clearly one of jest, unlike the stern punishment
issued by the trial judge in Brown. Moreover, the targets of the
challenged comments demonstrated no bias to the defense, unlike
the Brown juror, who expressly disclosed that he could not be
fair to the defense. Nevertheless, we find, similar to the Brown
holding, that defendant forfeited review of his contention and
the trial judge did not abuse his discretion.
We recognize, as defendant points out, that the rules of
forfeiture are relaxed where the unpreserved error relates to a
trial judge’s conduct. People v. Young, 248 Ill. App. 3d 491,
498, 618 N.E.2d 1026 (1993). We, however, find no reason to
relax forfeiture here. Defense counsel had ample opportunity to
question every venire member after the trial judge completed his
voir dire. Defense counsel never asked any of the potential
jurors whether they failed to answer a question honestly for any
reason, including out of fear of the judge’s response.
III. Provocation Instruction
Defendant contends the trial court erred by refusing to
issue a jury instruction for second degree murder based on a
sudden and intense passion resulting from serious provocation.
The State contends the trial court did not abuse its discretion
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in refusing to issue the instruction where there was no evidence
presented to support it.
A defendant is entitled to have the jury instructed on any
legally recognized defense theory having some basis in the
evidence. People v. Yarbrough, 269 Ill. App. 3d 96, 100, 645
N.E.2d 423 (1994). We review a trial court’s determination
whether to give a jury instruction for an abuse of discretion.
People v. Tatum, 389 Ill. App. 3d 656, 673, 906 N.E.2d 695 (2009)
(citing People v. Sims, 374 Ill. App. 3d 427, 431, 871 N.E.2d 153
(2007)). “However, whether a defendant has met the evidentiary
minimum for a certain jury instruction is a matter of law and our
review is de novo.” People v. Tijerina, 381 Ill. App. 3d 1024,
1030, 886 N.E.2d 1090 (2008).
An individual commits second degree murder when he or she
commits first degree murder, but a mitigating factor exists. 720
ILCS 5/9-2(a) (West 2004). The potential mitigating factors are
the defendant, at the time of the killing, either: (1) acted
under a sudden and intense passion resulting from serious
provocation, but negligently or recklessly caused the death; or
(2) believed he or she was acting in self defense. 720 ILCS 5/9-
2(a)(1), (a)(2) (West 2004). “Serious provocation is conduct
sufficient to excite an intense passion in a reasonable person.”
720 ILCS 5/9-2(b) (West 2004). The burden is on the defendant to
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prove by a preponderance of the evidence the existence of either
mitigating factor. 720 ILCS 5/9-2(c) (West 2004). “The only
categories of serious provocation that have been recognized in
Illinois are substantial physical injury or assault, mutual
quarrel or combat, illegal arrest, and adultery with the
offender’s spouse.” People v. Leach, 391 Ill. App. 3d 161, 178-
79, 908 N.E.2d 120 (2009).
Defendant contends the trial court erred in refusing to
issue a second degree murder instruction where the evidence
demonstrated she was seriously provoked into mutual quarrel or
combat. Specifically, defendant contends she acted under a
sudden and intense passion due to serious provocation because the
victim evicted her from his apartment and swung a baseball bat at
her in an attempt to bar her from retrieving her belongings.
Defendant says she stabbed the victim with the knife and struck
the victim with the stick because of the ensuing fight.
The evidence did not support the giving of a provocation
instruction based on mutual quarrel or combat. “ ‘Mutual combat
is a fight or struggle which both parties enter willingly or in
which two persons, upon a sudden quarrel, and in hot blood,
mutually fight upon equal terms and death results from combat.’ ”
Id. at 179 (quoting People v. Neal, 112 Ill. App. 3d 964, 967,
446 N.E.2d 270 (1983)). It is clear from the evidence, including
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defendant’s police statement, videotaped statement, and trial
testimony, as well as Latasha’s various testimony, that defendant
and the victim were not engaged in mutual quarrel or combat.
Defendant and the victim were not on equal terms. When defendant
began stabbing the victim with the serrated knife, the victim was
engaged in a struggle for control of the baseball bat with
Booker. At the time, the victim was not attempting to attack
defendant.
Moreover, defendant failed to present any real evidence of
serious provocation. People v. Austin, 133 Ill. 2d 118, 125, 549
N.E.2d 331 (1989) (“[d]efendant has the burden of proving there
is at least ‘some evidence’ of serious provocation or the trial
court may deny the instruction”). Booker and defendant pushed
their way into the victim’s apartment despite his refusal to
grant them entry. Although defendant had been staying at the
apartment for several months, the apartment ultimately belonged
to the victim. In an attempt to force the group out of the
apartment, the victim picked up a baseball bat and swung it.
Defendant’s successive violent attacks using deadly weapons were
out of proportion to the action the victim took to defend himself
inside his home. Id. at 127 (mutual combat will not be found
when the defendant’s response is not proportionate to the
provocation, especially where a deadly weapon is used).
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Defendant repeatedly stabbed the victim while Booker was also
beating the victim with a baseball bat and then a shovel. When
the victim had been beaten into submission and begged for his
life, defendant followed him out to the porch and struck him with
a piece of wood. The minor scrapes that defendant received do
not demonstrate mutual combat, especially when compared to the
extensive injuries the victim suffered.
Furthermore, Latasha’s testimony confirmed there was no
mutual quarrel or combat. In her handwritten statement, Latasha
said defendant was angry at the victim for kicking her out of his
apartment and planned to have “one of her boys to beat [the
victim’s] a***.” Latasha added that defendant was the last
person remaining on the victim’s porch. When Latasha went to
retrieve defendant, Latasha saw her hitting the victim with the
shovel while the victim attempted to block the blows. At trial,
Latasha testified that defendant was tipsy or a little drunk when
she went to the victim’s apartment to confront him regarding her
eviction. Latasha told the detectives and the grand jury that,
while defendant was repeatedly hitting the victim with the
shovel, defendant yelled, “I am going to kill you.” Therefore,
defendant was not acting under sudden and intense passion as a
result of sufficient provocation. Defendant went to the
apartment with the intention to at least confront the victim, if
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not incite a physical beating, because she learned that she was
being evicted. Even if the victim grabbed defendant and held
her, as Latasha testified on cross-examination, defendant’s
response of stabbing and beating him with multiple objects to the
point of injury as described by Dr. Kalelkar was not
proportionate. Id. at 126-27.
Therefore, the trial court’s refusal to issue a provocation
instruction was proper.
CONCLUSION
We affirm defendant’s conviction and sentence.
Affirmed.
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JUSTICE GARCIA, specially concurring:
I disagree with the author that no error occurred in the
trial court's admonishments to the prospective jurors. Slip op.
at 21. I read our supreme court's decision in People v.
Thompson, 238 Ill. 2d 598, 939 N.E.2d 403 (2010), to require
trial courts to strictly follow Rule 431(b). "Rule 431(b) ***
mandates a specific question and response process. The trial
court must ask each potential juror whether he or she understands
and accepts each of the principles in the rule." Id., at 607.
See People v. Fountain, No. 1-08-3459, slip op. at 19 (Ill. App.
Feb. 25, 2011) ("[Thompson discourages] [m]odification to the
language in Rule 431(b) *** much as modification of pattern jury
instructions is discouraged.").
I concur in the judgment only.
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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
BRENETTA INGRAM,
Defendant-Appellant.
Appellate Court of Illinois First District, FIRST DIVISION
March 31, 2011
JUSTICE LAMPKIN delivered the judgment of the court, with opinion.
Justice Garcia specially concurred, with opinion, joined by Presiding Justice Hall.
Appeal from the Circuit Court of Cook County. The Hon. Stanley J. Sacks, Judge Presiding.
COUNSEL FOR APPELLANT Michael J. Pelletier, State Appellate Defender, Chicago, IL 60601 Patricia Unsinn, Deputy Defender OF COUNSEL: Christopher Kopacz
COUNSEL FOR APPELLEE Anita Alvarez, Cook County State’s Attorney, Chicago, IL 60602 OF COUNSEL: James E. Fitzgerald and Peter Fischer
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