2023 IL App (1st) 210541-U No. 1-21-0541 Order filed February 24, 2023 Fifth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 13 CR 13196 ) ABEL RUIZ, ) Honorable ) Vincent M. Gaughan, Defendant-Appellant. ) Judge, presiding.
JUSTICE NAVARRO delivered the judgment of the court. Presiding Justice Delort and Justice Lyle concurred in the judgment.
ORDER
¶1 Held: We affirm the summary dismissal of defendant’s pro se postconviction petition where defendant did not state an arguable claim that appellate counsel was ineffective in failing to argue that the trial court’s noncompliance with Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) was plain error.
¶2 Defendant Abel Ruiz appeals from the circuit court’s order summarily dismissing his pro
se petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122 et seq. (West 2020)).
On appeal, defendant argues that counsel on direct appeal was ineffective in failing to argue that No. 1-21-0541
the trial court’s failure to comply with Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) was
plain error. We affirm.
¶3 Following a jury trial, defendant was found guilty of first degree murder for shooting and
killing Brandon Cage on June 12, 2013, in Chicago, and sentenced to 51 years’ imprisonment. At
trial, defendant testified he shot Cage in self-defense.
¶4 On direct appeal, defendant argued that the trial court erred in denying his motions (1) to
suppress his post-arrest communications with another arrestee, Steve Cervantes, which were
recorded while both were in custody, and (2) to exclude these communications at trial. We
affirmed, but corrected the mittimus concerning sentencing credit. People v. Ruiz, 2019 IL App
(1st) 152157.
¶5 Defendant filed a pro se postconviction petition on July 21, 2020. Defendant argued, inter
alia, that the trial court failed to properly admonish the jury under Illinois Supreme Court Rule
431(b) (eff. July 1, 2012), and counsel on direct appeal was ineffective for failing to raise the
argument.
¶6 Relevant to defendant’s claim, the report of proceedings reflects that, during jury selection,
the trial court advised the venire that a defendant is “presumed to be innocent” and that this
presumption “is not overcome unless from all the evidence in this case” the jury is “convinced
beyond a reasonable doubt that the defendant is guilty.” The trial court further noted that the State
bears the burden of proving the defendant’s guilt beyond a reasonable doubt and that the defendant
“is not required to present any evidence on his own behalf,” but “may rely upon the presumption
of innocence.” The following exchange then occurred:
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“THE COURT: Ladies and gentlemen, *** I want to discuss some basis [sic]
principles of constitutional law that apply to all criminal cases. First off, anybody that’s
placed on trial in a criminal case is presumed to be innocent of the charges against him. As
I stated earlier, [defendant] is not required to present any evidence on his own behalf, and
he may rely upon the presumption of innocence.
Does anybody have any qualms or problems understanding that constitutional
principle of presumed innocent? Please raise your hand.
Could you stand up.
UNIDENTIFIED PERSON: Is he charged with two murders or one?
THE COURT: He’s charged in two ways with one murder.
UNIDENTIFIED PERSON: Oh.
THE COURT: Does anybody have any problems understanding the presumption of
innocence? Please raise your hand. Let the record indicate no one raised their hand.”
¶7 The court then asked the venire whether anyone had “any problems applying or qualms
about applying the presumption of innocence,” and again indicated no hands were raised.
¶8 Next, the trial court addressed the applicable burden of proof, noting that the preponderance
of evidence standard applies in civil cases, “[b]ut in a criminal case, the burden of proof is proof
beyond a reasonable doubt, and this is the highest burden of proof at law.” The court asked, as
separate questions, whether anyone had “any problems understanding” the burden of proof in a
criminal case or had “any problems *** or qualms about applying that principle,” and to raise their
hand if they did After each question, the court indicated no one raised a hand.
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¶9 The trial court next told the venire that the burden of proof beyond a reasonable doubt
remains with the State throughout the case. The court again asked, separately, whether anyone had
“any problems understanding that principle” or “any problems about applying that principle,” and
after each question indicated no hands were raised.
¶ 10 Next, the trial court informed the venire that, if defendant were to testify, the jury should
“judge his credibility like any other witness.” The court asked whether anyone had any problems
understanding, or problems or qualms about applying that principle, and after each question
indicated no hands were raised.
¶ 11 Finally, the trial court addressed the venire as follows:
“THE COURT: Now, if you look at that as a constitutional coin and turn it over,
[defendant] does have a constitutional right not to testify, and if he decides not to testify,
no inference can be drawn from his silence.
Does anybody have any problems understanding that constitutional principle?
Please raise your hand.
Indicating no one raised their hand.
Does anybody have any problem applying that constitutional principle or qualms
about applying that constitutional principle? Please raise your hand.
Thank you, ladies and gentlemen.”
¶ 12 At trial, the State called Joseph Santiago, Amber Glassco, and Kristina Diosdado, who
were present during the shooting.
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¶ 13 Santiago testified that a misdemeanor DUI charge was pending against him and that he had
been convicted of misdemeanor theft. On June 12, 2013, he and his girlfriend, Glassco, were at his
house drinking with friends. Both wanted cocaine. At about 1 a.m., they drove Santiago’s van to
Cage’s home, because Cage knew someone who sold cocaine. From there, Santiago drove Glassco
and Cage to 60th Street and Homan Avenue. Cage went to the spot “where he would normally get
cocaine” while Santiago and Glassco remained in the van with the windows down.
¶ 14 Santiago saw a dark Ford Taurus drive by and heard someone say, “Ho, ho, ho. Hold up.
Hold up.” The Taurus stopped, and defendant exited the back seat; he had a “shag” haircut. He
drew a firearm, approached Santiago’s open window, put the firearm to Santiago’s head, and
asked, “What are you?” Santiago, intending to convey that he was not a gang member, replied,
“Nothing.” Defendant told Santiago to “drop the forks”—an order to make a gang-related hand
signal—and Santiago complied. Defendant said, “You’re lucky. I would have killed your a***.
You’re lucky your girlfriend’s here.”
¶ 15 Defendant walked back to the Taurus. Cage stood about 10 feet from defendant and said,
“What’s up?” Defendant asked, “Well, what you is?” Cage replied, “GD Folks.” Defendant walked
toward Cage, shot him three times, and ran to the back passenger seat of the Taurus, which left the
area. Santiago told Glassco to call 911. After speaking with the officers who arrived at the scene,
Santiago entered the back seat of a police vehicle, viewed defendant in a show-up, and identified
him as the shooter. Santiago testified that, before the shooting, Cage did not make physical contact
with defendant, try to strike him, or make threatening comments to him. Cage stood too far from
defendant to hit him, and was unarmed.
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¶ 16 Glassco testified that, shortly after midnight on June 12, 2013, she and Santiago were at
home drinking. Around 1 a.m., they drove to Cage’s house in their van, picked him up, and drove
to 60th and Homan to buy drugs. Glassco and Santiago stayed in the van while Cage went to make
the buy. Someone near the driver’s side of the vehicle asked Santiago “what he was.” Although
Glassco’s view of the man’s face was blocked by Santiago, she saw that the bottom part of his hair
was long. The man told Santiago to “[d]rop the forks.” After Santiago complied, the man told
Santiago that he was lucky that Glassco was beside him because the man would have shot Santiago
otherwise.
¶ 17 As the man walked to a dark Ford Taurus that was in front of the van, Cage returned and
said, “What’s up? Folks.” The man asked what Cage was. After Cage replied, “I’m GD,” the man
shot Cage. Glassco heard three shots. Cage fell, and the man ran to the Taurus, which was then
driven away. Glassco called 911. Glassco did not see Cage with a weapon and did not see Cage
threaten or hit the man.
¶ 18 On cross-examination, Glassco stated that she could not see the man’s body, face, and
hands when he approached the van. She did not identify the shooter in a show-up at the scene or
in a subsequent lineup at the police station.
¶ 19 Diosdado testified that on June 11, 2013, she spent the day at the beach with defendant,
Andres Davila, and Cervantes, who was her boyfriend. 1 Later, Diosdado, Cervantes, and Davila
drove to defendant’s house. Cervantes became intoxicated and fell asleep. After a few hours,
Diosdado entered a dark green Ford Taurus, driving Cervantes, who sat in the front passenger seat,
1 Diosdado referred to Davila as “Andrew” and “Tiny.” On cross-examination, defense counsel referred to Davila as Andres Davila.
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and defendant, who sat in the back passenger seat. She intended to take Cervantes home. Near 60th
and Homan, defendant asked her to stop; she complied, and he exited the vehicle. A van was
behind them. In the rearview mirror, Diosdado saw defendant approach the driver’s side of the
van. Through the open windows of the Taurus, she heard defendant ask the van’s occupants, a
woman and a man, about their gang affiliations. Diosdado testified that defendant also spoke to
Cage, whose name she did not know at the time. She heard defendant say, “King love,” and heard
Cage say, “I’m Folks.” She then heard three or four shots. She did not see Cage punch or swing at
defendant. She did not hear anyone say, “I’ll smoke you” or “take your things.” Defendant returned
to the Taurus and told Diosdado to “go.” She saw a handgun on defendant’s lap. She drove around
and saw Davila, who jumped into the Taurus. A few blocks later, the police curbed the Taurus.
¶ 20 On cross-examination, Diosdado admitted that she did not see what occurred between
defendant and Cage and did not know whether Cage struck defendant.
¶ 21 Officer Filiberto Rosas testified that, after monitoring a call around 1:25 a.m. on June 12,
2013, he curbed a vehicle and observed defendant in the back seat. Upon a search, a firearm was
recovered from beneath the front passenger seat.
¶ 22 Ellen Chapman, a forensic scientist for the Illinois State Police, testified that analysis of a
gunshot residue collection kit administered to defendant revealed sufficient particles from both of
his hands to conclude that he had discharged a firearm, had contacted a gunshot residue-related
item, or had been in the environment of a discharged firearm. The State entered a stipulation that
Dr. James Filkins performed Cage’s autopsy and would have testified that Cage was 5 feet, 11
inches tall, weighed 254 pounds, and had three gunshot wounds to his abdomen and chest. The
cause of death was multiple gunshot wounds, and the manner of death was homicide.
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¶ 23 Chicago police detective Michael Jackson testified that defendant, Diosdado, Cervantes,
and Davila were taken to a police station and placed in separate areas, each of which had video
surveillance. At one point, Jackson was informed that people in the areas were yelling and
conversing in Spanish.
¶ 24 The State entered a stipulation between the parties that, if called, Chicago police officer
Raul Cortez would have testified that he was fluent in English and Spanish. On June 12, 2013,
Cortez listened to a conversation between defendant and Cervantes in Spanish, which was filmed
and translated to English. Cortez watched the recording, which accurately represented the
conversation, and read the English translation, which was true and accurate. The State entered the
DVD recording into evidence, the court overruling the defense objection that the recording
contained hearsay statements by Cervantes. A transcript of the DVD was provided to the members
of the jury as demonstrative evidence. Before the DVD was played, the court instructed the jury
that only the video was evidence, the transcript was provided only to aid in watching the video,
and the jury would not receive the transcript during deliberations. The DVD, but not the transcript,
was admitted into evidence, and contained the following conversation between defendant and
Cervantes 2:
“CERVANTES: What happened?
DEFENDANT: We did a f*** job, dude.
2 The DVD is not included in the record on appeal. In our order on direct appeal, we noted that, as the written transcript given to the jury was not in the record, the excerpts of the DVD quoted in our order were derived from a transcript, prepared by defendant’s appellate counsel, of the captions included in the video recording. Ruiz, 2019 IL App (1st) 152157, ¶ 20 n.3. The State agreed that this transcript accurately reflected the captions at the bottom of the video recording. Id. The record for the instant appeal contains neither the transcript given to the jury (which was not admitted into evidence) nor the transcript prepared by defendant’s appellate counsel. Therefore, in this order, we incorporate excerpts from the latter transcript as quoted in our order on direct appeal.
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CERVANTES: Who?
DEFENDANT: I did.
CERVANTES: Huh?
DEFENDANT: I did it.
***
DEFENDANT: What the f***, man? They got me handcuffed dog.
CERVANTES: What—what did they tell you?
DEFENDANT: Nothing that—that they are investigating, dude, but they found the
f*** cannon in the car, dude.
CERVANTES: And who did they blame?
DEFENDANT: Nobody, dude. They just—they just took us, dude, but I told this
guy run, dude, and the guy just put it under the car, dude.
DEFENDANT: Tiny put the cannon under the seat. I told this guy to run, dude and
guy didn’t run. Hey!
DEFENDANT: I caught—I caught an a*** over there, dude. I caught a f***, dude.
CERVANTES: And what happened?
DEFENDANT: I let him have it, dude.
CERVANTES: But who is going to take the blame, dude?
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DEFENDANT: Man, n***, this guy told me—he’s all like, look when I told him
to run he’s all like, man, I’m going to say it’s mine dude. That’s what he told me.
DEFENDANT: That guy said he was going to take the blame, dude. I told this guy
to run dude and the guy didn’t run. I told him way before that they were going to stop us
when—when we saw the cops I told him, get out dude and run dude. Just put it under the
seat, dude. He said, I’m going to say that it’s mine. That’s what he told me, dog.
CERVANTES: But don’t f*** around, dude. I’m here and also my lady.
CERVANTES: What—what was the f*** stupid fight about, dude.
DEFENDANT: Huh?
CERVANTES: What were all of you doing yesterday, dude?
DEFENDANT: Yesterday we went to eat, a***.
CERVANTES: And you filled him up with lead?
DEFENDANT: Hell yeah.
CERVANTES: Did they get the—the gun?
DEFENDANT: Yeah, n***, I told you—I told you what happened, dude. This idiot
I told guy to run I told the guy to run, man and—and this guy said he put it under the seat
and he said, I’m going to say it’s mine. That’s what he said, dog. I tellin’ this n***, run
dude, run your a*** off—run and this guy didn’t want to, dude.
CERVANTES: F*** dumb guy. What happened, man?
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DEFENDANT: I filled a guy with lead close range, n***.
CERVANTES: What?
DEFENDANT: Close range—I filled him with lead, dude. (Inaudible)—
CERVANTES: Hey dude.
DEFENDANT: Yeah.
CERVANTES: Did you see the f*** fall?
DEFENDANT: He fell, dude, in front of me, dude. And when I—and when I tried
to fill him up with lead again I didn’t have anymore, dude. I let him have like four or five,
dude. Hey dude!
CERVANTES: Yes.
DEFENDANT: When you get out, dude, ask your old lady. She saw everything,
dude.”
¶ 25 Defendant testified that he had been convicted of armed robbery in 2008. On June 11, 2013,
he, Davila, Cervantes, and Diosdado went to Lake Michigan and then to defendant’s house, where
they drank. Early on June 12, Cervantes became very intoxicated and passed out. Diosdado asked
defendant for cocaine. Defendant did not know where to get cocaine. Davila made some phone
calls in order to procure cocaine. All four of them left in Diosdado’s car, with Diosdado driving
and Davila directing her.
¶ 26 At 60th and Homan, Davila told defendant to buy the cocaine, said the seller would come
via a gangway, and gave defendant a firearm, which defendant put in his waistband. Defendant
walked toward the sidewalk, where he saw a black man whom he did not know at the time but
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testified was Cage. Believing Cage to be the seller, defendant approached him. Cage said, “What
up, Folks?” Defendant—a member of the Latin Kings and opposed to the Folks alliance—
responded, “I ain’t no m***f*** Folks.” Cage asked, “Then what the f*** you doing in my hood,
b***?” Defendant said he was there to meet somebody. Cage said, “You better take your a***
home before I take all your s*** and smoke your a***,” words defendant interpreted as a threat to
rob and kill him. Cage smacked defendant on the left side of his head. Defendant stepped back,
and Cage approached defendant with closed fists. Defendant guarded his face with his arm, drew
the firearm, and fired “back to back to back.” Cage fell. Defendant testified that he fired the weapon
because Cage’s conduct put defendant in fear for his life. At the time, defendant was 5 feet, 5
inches tall and weighed around 135 pounds, and Cage was “bigger.” After shooting Cage,
defendant ran to Diosdado’s car and returned the firearm to Davila. Defendant denied conversing
with anyone in a van or seeing a van at the scene.
¶ 27 As to his recorded conversation with Cervantes, defendant disputed certain aspects of the
translation. In the video, “plomie” was translated as “filled him up with lead,” but, according to
defendant, means “I shot him.” Defendant testified that the statement “I let him have it four or five
times” was also an incorrect translation. Defendant further asserted that his statements that he did
a “f*** job” and “I let him have it, dude” should have been translated as “I shot somebody.”
Defendant did not recall saying, “I let him have it like four or five, dude.”
¶ 28 In closing, defense counsel asserted that defendant acted in self-defense and feared for his
life when he shot Cage. Defense counsel further stated that a finding that one acted in self-defense
did not require that the other person “had a gun or knife or stick.” Cage was six inches taller than
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defendant and outweighed him by 100 pounds. Defense counsel also challenged Diosdado’s
credibility and noted that the State failed to call Davila and Cervantes.
¶ 29 In rebuttal, the State noted that defendant’s videotaped conversation with Cervantes gave
no indication of self-defense and contended that the cause of this omission was that “it didn’t
happen that way.”
¶ 30 The jury found defendant guilty of first degree murder. The trial court denied defendant’s
motion for a new trial, in which he argued, inter alia, that the court should have granted his
motion in limine to exclude Cervantes’s statements from the video. After a hearing, defendant was
sentenced to 51 years in prison, which included a 25-year firearm enhancement.
¶ 31 On direct appeal, defendant contended that the trial court erred by allowing into evidence
certain statements made by Cervantes in the police station video recording as tacit admissions, and
that the court should have excluded Cervantes’s statements that defendant and others took matters
“too far.” This court agreed that Cervantes’s statements at issue were impermissible hearsay and
that the limiting instruction was imperfect, but affirmed. Ruiz, 2019 IL App (1st) 152157, ¶¶ 42-
43, 48. We determined that the evidence presented against defendant was “overwhelming” and
that no reasonable probability existed that the jury would have acquitted him but for the admission
of Cervantes’s statements; thus, their admission was harmless error. Id. ¶ 44.
¶ 32 Defendant filed his pro se postconviction petition on July 21, 2020. He argued, in relevant
part, that the trial court failed to comply with Illinois Supreme Court Rule 431(b) by “conflat[ing]”
the presumption of innocence with “the principle that defendant is not required to present
evidence,” and by failing to ask the venire persons whether they understood and accepted this
principle. He contended that trial counsel failed to preserve this issue for appeal, and that appellate
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counsel was ineffective in not raising the issue on direct appeal. Further, he contended that both
he and the State’s witnesses presented “plausible theories,” rendering the evidence “close rather
than overwhelming.”
¶ 33 The circuit court, in a written order on October 8, 2020, summarily dismissed the petition
as frivolous and patently without merit. The court concluded, in relevant part, that it adequately
complied with Rule 431(b) in examining the venire and that defendant could not show prejudice
from appellate counsel’s failure to raise the issue on direct appeal.
¶ 34 On May 13, 2021, this court allowed defendant’s motion for leave to file a late notice of
appeal. 3
¶ 35 In this appeal, defendant argues that the circuit court’s summary dismissal of his
postconviction petition was erroneous because counsel on direct appeal was ineffective for failing
to argue that the trial court had not complied with Rule 431(b). Although defendant acknowledges
that trial counsel failed to preserve the issue for direct appeal, defendant maintains that it is at least
arguable that appellate counsel was ineffective in failing to raise the issue under the first prong of
the plain error doctrine and that, had counsel done so, this court would have reversed defendant’s
conviction and remanded for a new trial.
¶ 36 The Act provides for three-stage postconviction proceedings to evaluate a defendant’s
claim of constitutional error in the original conviction and sentencing. People v. English, 2013 IL
3 Defendant initially filed an untimely motion to reconsider the dismissal order of October 8, 2020, accompanied by a notice of appeal of the order and any denial of the motion to reconsider, on November 13, 2020, according to his certification of mailing. See 735 ILCS 5/1-109 (West 2020). The trial court denied the motion on December 9, 2020. Defendant’s subsequent motion for leave to file a late notice of appeal from the October 8, 2020, order was timely filed on May 4, 2021. See Ill. S. Ct. R. 606(c) (eff. Mar. 12, 2021).
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112890, ¶¶ 22-23. At the first stage—relevant to the present appeal—the circuit court, without
input from the State, determines whether the defendant’s petition is frivolous or patently without
merit, such that summary dismissal is warranted. 725 ILCS 5/122-1(a-5), 122-2.1(a)(2) (West
2020). The circuit court may consider the court file, transcripts of the proceeding giving rise to the
conviction, and any action taken by an appellate court. 725 ILCS 5/122-2.1(c) (West 2020).
¶ 37 Summary dismissal of a pro se petition is appropriate “only if the petition has no
arguable basis either in law or in fact”—that is, when it is based on an indisputably meritless legal
theory or fanciful factual allegation. People v. Hodges, 234 Ill. 2d 1, 11-12, 16 (2009). An
indisputably meritless legal theory includes one that is completely contradicted by the record. Id.
at 16. A petition lacks an arguable basis in fact when based on a fanciful factual allegation, such
as one that is clearly baseless, fantastic, or delusional. Id. at 16-17. The circuit court must liberally
construe pro se postconviction petitions at the first stage, viewing them “ ‘with a lenient eye,
allowing borderline cases to proceed.’ ” Id. at 21 (quoting Williams v. Kullman, 722 F. 2d 1048,
1050 (2d Cir. 1983)). “At the pleading stage of postconviction proceedings, all well-pleaded
allegations in the petition and supporting affidavits that are not positively rebutted by the trial
record are to be taken as true.” People v. Robinson, 2020 IL 123849, ¶ 45. We review the summary
dismissal of a postconviction petition de novo. Hodges, 234 Ill. 2d at 9.
¶ 38 The scope of postconviction proceedings is limited. “[I]ssues that could have been raised
on direct appeal, but were not, are forfeited.” English, 2013 IL 112890, ¶ 22. However, an
exception to the rule of forfeiture may be recognized where fundamental fairness so requires,
including where the forfeiture results from ineffective assistance of appellate counsel. Id.
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¶ 39 As noted, defendant claims appellate counsel was ineffective in failing to raise, on direct
appeal, the deficiency of the trial court’s examination of the potential jurors under Rule 431(b). A
claim of ineffective assistance of appellate counsel based on his or her failure to raise an issue
requires the defendant to show that (1) counsel’s failure to raise the issue rendered his performance
deficient such that it fell below an objective standard of unreasonableness, and (2) the defendant
was prejudiced on appeal in that the outcome would have differed had counsel not erred. See
People v. Childress, 191 Ill. 2d 168, 175 (2000). Accordingly, prejudice can result from appellate
counsel’s failure to raise an argument only where such argument would have been successful had
it been raised. Id. (“Unless the underlying issue is meritorious, petitioner suffered no prejudice
from counsel’s failure to raise it on direct appeal.”). At the first stage of proceedings, a petition
based on a claim of ineffective assistance need only show that (1) counsel’s alleged failure
arguably rendered his performance so deficient that it fell below an objective standard of
reasonableness, and (2) the defendant was arguably prejudiced thereby. People v. Hatter, 2021 IL
125981, ¶ 25.
¶ 40 As defendant concedes, he forfeited review of the error he now alleges appellate counsel
failed to raise—the trial court’s failure to comply with Rule 431(b)—when trial counsel failed to
object during voir dire and failed to include this issue in a posttrial motion. See People v. Sebby,
2017 IL 119445, ¶ 48. On direct appeal, this court may excuse a defendant’s forfeiture under the
“plain error” doctrine. Id.; see also Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967) (“Plain errors or defects
affecting substantial rights may be noticed [on appeal] although they were not brought to the
attention of the trial court.”). The doctrine applies where a “clear or obvious error occurred” and
either (1) “ ‘the evidence is so closely balanced that the error alone threatened to tip the scales of
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justice against the defendant, regardless of the seriousness of the error,’ ” or (2) the error is “ ‘so
serious that it affected the fairness of the defendant’s trial and challenged the integrity of the
judicial process, regardless of the closeness of the evidence.’ ” People v. Gaines, 2020 IL 125165,
¶ 18 (quoting People v. Piatkowski, 225 Ill. 2d 551, 565 (2007)). The burden of persuasion lies
with the defendant. Gaines, 2020 IL 125165, ¶ 18 (citing People v. Thompson, 238 Ill. 2d 598, 613
(2010)).
¶ 41 Here, defendant argues that only the first prong of the doctrine applies. Thus, at this stage,
defendant must establish that appellate counsel’s failure to claim that the trial court’s Rule 431(b)
admonitions constituted first-prong plain error rendered counsel’s performance arguably deficient
and that, had counsel raised the issue, defendant arguably would have prevailed on direct appeal.
Hatter, 2021 IL 125981, ¶ 25. Mindful of these principles, we consider, first, whether the trial
court’s admonitions were constitutionally deficient under Rule 431(b), such that they constituted
“clear or obvious error” for purposes of the plain error doctrine. See Gaines, 2020 IL 125165,
¶ 18. We find clear and obvious error.
¶ 42 Rule 431(b) requires the trial court to ask each potential juror, individually or in a group,
whether that juror “understands and accepts” the following four principles:
“(1) that the defendant is presumed innocent of the charge(s) against him or her; (2) that
before a defendant can be convicted the State must prove the defendant guilty beyond a
reasonable doubt; (3) that the defendant is not required to offer any evidence on his or her
own behalf; and (4) that if a defendant does not testify it cannot be held against him or her;
however, no inquiry of a prospective juror shall be made into the defendant’s decision not
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to testify when the defendant objects.” (Emphasis added.) Ill. S. Ct. R. 431(b) (eff. July 1,
2012).
¶ 43 Rule 431(b) is based on the four principles articulated by our supreme court in People v.
Zehr, 103 Ill. 2d 472, 477 (1984). The rule imposes on trial courts an affirmative duty to ask the
venirepersons, sua sponte, whether they understood and accepted the principles. Birge, 2021 IL
125644, ¶ 31. Thus, the rule’s plain language “mandates a specific question and response process”
between the trial court and potential jurors. Thompson, 238 Ill. 2d at 607. A trial court’s failure to
inquire regarding the potential jurors’ understanding or acceptance of one or more of the principles
of Rule 431(b) violates the rule. Id. Whether the trial court complied with Rule 431(b) is reviewed
de novo. People v. Wilmington, 2013 IL 112938, ¶ 26.
¶ 44 Our review of the record shows that the trial court did not fully comply with Rule 431(b)
with respect to the third principle. The trial court announced the first and third principles together,
stating twice that a defendant “is not required to prove his innocence” nor “to present any evidence
on his own behalf” (the third principle) and that he “may rely upon the presumption of innocence”
(the first principle). The court asked the potential jurors repeatedly whether they had “qualms,”
“problems understanding,” or “qualms about applying that constitutional principle of presumed
innocent” and sought a show of hands. The trial court did not, however, ask the potential jurors
whether they understood and accepted the third principle.
¶ 45 Our supreme court held in Sebby that a trial court’s mere question to the potential jurors
“whether they ‘had any problems with’ ” or “ ‘ believed in’ ” the four Zehr principles failed to
sufficiently comply with the rule and constituted clear error. Sebby, 2017 IL 119445, ¶ 49. Rather,
the rule “requires the trial court to ask potential jurors whether they understand and accept the four
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Zehr principles.” Id. ¶ 49. This ruling compels our finding that the trial court’s failure to ask the
venire whether it accepted and understood the third principle was clear error.
¶ 46 We reject the State’s reliance on People v. Birge, 2021 IL 125644, and contention that the
trial court merely, and permissibly, “conflated” the first and third principles of Rule 431(b) by
stating them together. In Birge, the supreme court found Rule 431(b) satisfied where the trial court
instructed the jury to “ ‘listen carefully as I will be asking if you understand these principles of
law and if you accept [them]’ ”; read all four principles in the rule verbatim; and asked the
following questions: “ ‘By a show of hands, do each of you understand these principles of law?’ ”
and “ ‘Do each of you accept these principles of law?’ ” (Emphasis added.) Id. ¶¶ 4-6, 35.
¶ 47 In the case at bar, the trial court did not ascertain the jury’s understanding and acceptance
of all four principles simultaneously, as in Birge, but instead directed individual questions as to
the first, second, and fourth principles, but not the third. Thus, Birge does not dissuade us from
finding clear error in this case.
¶ 48 The State, citing People v. Albarran, 2018 IL App (1st) 151508, further argues that,
regardless of whether the trial court erred in failing to question the potential jurors about the third
Zehr principle, defendant cannot show “prejudice” because he offered evidence at trial. In
Albarran, as here, the potential jurors were not asked whether they understood and accepted that
a defendant is not required to offer evidence on his behalf. Id. ¶ 58. The defendant, who had not
preserved the issue, sought first-prong plain error review on direct appeal. Id. ¶ 51. A panel of this
court affirmed his conviction, finding, inter alia, that he had, in fact, offered evidence at trial. Id.
¶ 58. Reasoning that the defendant was required to show prejudice resulting from the court’s error
and that “ ‘[w]hat makes an error prejudicial is the fact that it occurred in a close case where its
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impact on the result was potentially dispositive,’ ” the appellate court concluded there was no
possibility that the error affected the outcome of the trial. (Emphasis added.) Id. (quoting Sebby,
2017 IL 119445, ¶ 68).
¶ 49 Defendant, in his reply brief, contends we should decline to follow Albarran because it
deviates from principles set forth in Sebby. In Sebby, our supreme court instructed that the finding
of prejudice under the first prong of the plain error doctrine depends on “the closeness of the
evidence,” not on “the seriousness of the error.” Sebby, 2017 IL 119445, ¶ 68. “Thus, whether a
Rule 431(b) violation is trivial or de minimis—and we have repeatedly found it is neither—is
simply the wrong inquiry.” Id. ¶ 69. When a reviewing court finds the trial court erred in failing
to comply with Rule 431(b), “[t]he only question” remaining under the first-prong inquiry “is
whether the evidence is closely balanced.” Id. Accordingly, here, defendant contends his
presentation of evidence at trial should not preclude plain error relief.
¶ 50 Even accepting defendant’s position that he may show “prejudice” under the first prong of
the plain error doctrine even though he presented evidence at trial, we would not find he is entitled
to relief because, in this case, the evidence was not closely balanced.
¶ 51 Defendant argues the trial evidence is closely balanced because “the case came down to a
credibility contest between [defendant] and the State’s witnesses” and thus he was “arguably
prejudiced.” Citing Sebby and People v. Naylor, 229 Ill. 2d 584 (2008), defendant claims that a
credibility contest sufficient to establish that the evidence is closely balanced occurs when the
State’s witnesses and the defense witnesses testify to opposing versions of events, no extrinsic
evidence corroborates or contradicts either version, and both versions are “credible” or not
“fanciful.” See Sebby, 2017 IL 119445, ¶ 61 (finding both accounts credible where “neither the
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prosecution nor the defense accounts of *** events were fanciful”); Naylor, 229 Ill. 2d at 607
(“Given these opposing versions of events, and the fact that no extrinsic evidence was presented
to corroborate or contradict either version, the trial court’s finding of guilty necessarily involved
the court’s assessment of the credibility of the two [testifying] officers against that of defendant.”).
¶ 52 However, Naylor and Sebby did not involve assertions by the defendant that he acted in
self-defense, and are not otherwise factually analogous to this case. In Sebby, the defendant was
charged with resisting a peace officer; three officers called by the State claimed he resisted arrest
and injured an officer, whereas the defendant and other witnesses testified the officers manhandled
him. Sebby, 2017 IL 119445, ¶¶ 27-36. The court noted that while “[m]inor inconsistencies clouded
the testimony on both sides, *** neither the prosecution nor the defense accounts” of the events
“were fanciful.” Id. ¶ 61. The State’s argument that the defendant’s witnesses were biased was not
dispositive, each side’s version of events was internally consistent, and no extrinsic evidence
corroborated either version. Id. ¶¶ 61-62.
¶ 53 In Naylor, the defendant was arrested along with several others during the chaos of a drug
raid at an apartment complex. Naylor, 229 Ill. 2d at 590-91. Two officers testified that they
encountered the defendant in the stairwell and that he sold them heroin, but the defendant testified
that he had left his apartment to pick up his son from school when he was mistakenly apprehended
during the raid. Id. at 588-91. The court found that the defendant’s conviction turned on a “contest
of credibility,” in part because the defense’s version of events was “consistent with much of the
officers’ testimony and the circumstances of his arrest.” Id. at 606-07.
¶ 54 These cases are inapposite to the case at bar. “The evidence presented in a case is not
deemed to be closely balanced merely because it turns on conflicting witness testimony.” People
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v. Ammons, 2021 IL App (3d) 150743, ¶ 60. Our review for first-prong plain error requires “a
commonsense analysis of all the evidence in context” to determine whether it is “closely
balanced.” People v. Belknap, 2014 IL 117094, ¶ 50. The analysis also requires that we make a
qualitative, rather than a quantitative, commonsense assessment of whether the evidence is closely
balanced. People v. White, 2011 IL 109689, ¶ 139.
¶ 55 We find the evidence against defendant was not closely balanced, but rather, as we stated
in our order on direct appeal, “overwhelming.” Compare Ruiz, 2019 IL App (1st) 152157, ¶ 44,
with Piatkowski, 225 Ill. 2d at 568 (noting evidence did not “overwhelming[ly] favor the State”
and was “closely balanced” (emphasis added)). Here, there is no “contest” of credible but
competing versions of events. Applying a commonsense analysis to the totality of the evidence,
defendant’s actions after the shooting do not credibly reflect that he acted in self-defense.
¶ 56 As we previously noted, “[t]he State’s witnesses provided a consistent version of the
incident.” Ruiz, 2019 IL App (1st) 152157, ¶ 44. Santiago testified that defendant approached the
van and asked about Santiago’s gang affiliation. Id. Santiago then saw defendant, upon
encountering Cage, ask about his gang affiliation and shoot him three times. Santiago did not see
Cage make physical contact with defendant, and testified that Cage was too far from defendant to
hit him. Id. Although Glassco could not identify the shooter, she testified that a man on the driver’s
side of the van asked for Santiago’s gang affiliation and then exchanged words with Cage about
his gang affiliation before shooting him. Id. Further, Diosdado—who was in defendant’s vehicle—
similarly testified that defendant approached another vehicle, checked for the occupants’ gang
affiliations, and then spoke to Cage about gang affiliations, whereupon she heard three or four
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shots. Although Diosdado stated she did not see the interaction between defendant and Cage, her
testimony is consistent with the State’s other witnesses, Santiago and Glassco. Id.
¶ 57 Additional evidence suggests that defendant was the aggressor. He was armed. He testified
that he opposed Cage’s gang affiliation and issued the first insult before shooting Cage, an unarmed
man whom he did not know, three times. Further, defendant’s claim that he acted in self-defense
is not only uncorroborated, but inconsistent with his subsequent actions. See People v. Blair, 2011
IL App (2d) 070862, ¶¶ 42-43 (where trial court failed to comply with Rule 431(b), rejecting claim
that evidence was “closely balanced” where the defendant initiated a struggle from behind the
victim and fled rather than contacting authorities or calling an ambulance). In admitting to the
shooting to Cervantes, defendant made no mention of self-defense; rather, he told Cervantes that
the victim “fell, dude, in front of me, dude. And when I—and when I tried to [shoot] him *** again
I didn’t have anymore.” Defendant said he told another individual, presumably Davila, to “run”
and expected him to “take the blame.” Defendant also fled the scene; Diosdado testified that
defendant got back into the Taurus and told her to “go,” and the testimony of Santiago and Glassco
indicates that Glassco called 911. Finally, although defendant challenges Santiago’s credibility on
the grounds of his prior misdemeanor theft conviction, DUI charge, and admitted cocaine use,
defendant had a prior conviction for the more egregious crime of armed robbery. Because the
evidence was not closely balanced, defendant is not entitled to relief under the plain error doctrine.
¶ 58 In sum, because the evidence was not closely balanced, defendant is not entitled to relief
under the first prong of the plain error doctrine. Consequently, defendant cannot show that
appellate counsel was ineffective for failing to argue that the trial court’s noncompliance with
Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) was plain error. As such, defendant’s
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postconviction petition did not state the gist of a constitutional claim. The circuit court therefore
did not err in summarily dismissing the petition.
¶ 59 Affirmed.
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