Filed 7/9/10 NO. 4-09-0312
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Champaign County DEBRA M. STAPLE, ) No. 08CF818 Defendant-Appellant. ) ) Honorable ) Thomas J. Difanis, ) Judge Presiding. _________________________________________________________________
JUSTICE KNECHT delivered the opinion of the court:
In January 2009, a jury convicted defendant, Debra M.
Staple, of (1) aggravated battery (720 ILCS 5/12-4(b)(18) (West
Supp. 2007)) for striking a peace officer with her car door and
(2) obstructing justice (720 ILCS 5/31-4(a) (West 2008)) for
providing a false name in order to avoid arrest. In February
2009, the trial court denied defendant's motion for acquittal or,
in the alternative, a new trial and sentenced defendant to 10
years' imprisonment for aggravated battery and 3 years' imprison-
ment for obstructing justice, to run concurrently. In April
2009, the court denied defendant's motion to reduce sentence.
Defendant appeals, arguing the court erred by (1) denying defen-
dant's motion to continue to retain private counsel and (2)
failing to comply with Supreme Court Rule 431(b) (Official
Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007). We affirm.
I. BACKGROUND
On April 29, 2008, at approximately 2 a.m., police
approached defendant and her husband in their parked car as
possible witnesses to a reported nearby shooting. Defendant
denied hearing a gunshot; provided a false name for herself,
apparently to avoid arrest on two outstanding warrants; refused
to exit the car after police ascertained her true identity;
attempted to close the car door, which the officers had ordered
opened to try to remove her, thereby striking an officer standing
within its sweep; and was then restrained and taken into custody
by police with the use of pepper spray.
On April 30, 2008, the State charged defendant with (1)
aggravated battery (720 ILCS 5/12-4(b)(18) (West Supp. 2007)) for
knowingly making contact of an insulting or provoking nature with
a known peace officer engaged in the execution of official duties
and (2) obstructing justice (720 ILCS 5/31-4(a) (West 2008)) for
providing the police a false name in order to prevent her own
arrest. On May 5, at defendant's arraignment, the court ap-
pointed an attorney for defendant. On June 3, defendant failed
to appear for a hearing.
The trial court set trial for January 5, 2009. On that
date, defendant moved for a continuance to retain private coun-
- 2 - sel. The motion stated, "[Defendant] has talked with one attor-
ney, but he has not yet entered his appearance." When she
presented the motion to the court, defense counsel said, "At this
point this morning [defendant], after the pre[]trial, informed me
that she wants to hire private counsel. She said that she had
spoken with someone but was not able to get that attorney in
court this afternoon." In response to the court's inquiry into
the identity of the attorney, counsel said, "Your Honor, she
would not tell me. She said she didn't feel like she could use
that person's name unless she'd actually hired that attorney."
The court noted "in [Champaign County case No.] 07[-]CF[-]349
[defendant] was in court in March of '07, some close to two years
ago. In [Champaign County case No.] 08[-]CF[-]818 [(this case)]
she was in court May of '08." The court concluded defendant was
"using this [request for private counsel] merely as a ploy to get
a continuance" and denied the motion.
After a recess, defense counsel renewed the motion to
continue, provided the name of the attorney defendant allegedly
consulted, and stated defendant "was expecting that he would be
able to be here to enter his appearance tomorrow morning at 9."
The trial court again expressed its doubts as to defendant's
motives and diligence, noted the case was set for trial that day,
and expressed further doubts as to the availability of the named
attorney. The court denied the motion. Moments later, during
- 3 - discussion of the parties' witness lists, the court added:
"That's another reason why the [c]ourt's
going to deny the [m]otion to [c]ontinue.
The defense has writted [a witness] back from
the Department of Corrections. He is here
presently in our custody for trial today.
Again, all this [d]efendant is doing is try-
ing to delay a trial in this matter."
The court did not address the motion further at trial.
For voir dire, the trial court addressed the entire
venire, stating as follows:
"I want to go over some of the instructions
with you now so that you can keep them in
perspective as you listen to the testimony.
I will continue to repeat these instructions
throughout the course of the afternoon as we
go through our jury selection.
The first instruction is that [defen-
dant] is presumed to be innocent of the
charges against her. This presumption re-
mains with her throughout every stage of the
trial and during your deliberations on the
verdict and is not overcome unless, from all
of the evidence in this case, you are con-
- 4 - vinced beyond a reasonable doubt that she is
guilty.
The State has the burden of proving the
guilt of [defendant] beyond a reasonable
doubt, and this burden remains on the State
throughout the case. [Defendant] is not requ-
ired to prove her innocence.
In connection with that last sentence,
this [d]efendant, as does every citizen,
possesses an absolute right not to testify at
her trial if she so chooses. If [defendant]
chooses not to testify, you'll receive an
instruction that states the fact that [defen-
dant] did not testify must not be considered
by you in any way in arriving at your ver-
dict."
After further individual questioning of the venirepersons by the
court, the State, and the defense about their families, whether
they knew any of the parties involved in the case, and whether
they could be fair and impartial, and after the parties exercised
peremptory challenges, the court addressed the first venire
panel, consisting of four potential jurors accepted by the
parties, stating as follows:
"THE COURT: *** For the four of you, I
- 5 - want to go over again the instructions that
we started with this afternoon.
The four of you understand that [defen-
charges against her; that before [defendant]
can be convicted the State must prove her
guilty beyond a reasonable doubt; that [de-
fendant] is not required to offer any evi-
dence on her own behalf[;] and that if [de-
fendant] chooses not to testify, her failure
to testify cannot be held against her in any
way.
The four of you understand those in-
structions; is that correct?
[THE JURORS:] (In unison) Correct.
THE COURT: And they answer in the affir-
mative.
And the four of you will follow those
instructions; is that correct?
[THE JURORS:] (In unison) Yes.
THE COURT: Again, they answer in the
affirmative."
The court swore in all four members of the first panel as jurors.
The court and the parties proceeded to question individual
- 6 - members of a second venire panel, consisting of four potential
jurors, a third panel, consisting of four potential jurors, and a
fourth panel, consisting of two potential alternate jurors.
Following individual questioning and further peremptory chal-
lenges, the parties accepted the members of each panel. The
court repeated the above instructions and asked the members of
each panel collectively if they understood and accepted the
instructions. Each panel affirmed the instructions in unison.
The court swore in the members of the panels as jurors and
alternate jurors. After evidence and arguments, the court again
instructed the jury regarding the presumption of innocence, the
burden of proof, and defendant's rights not to present evidence
and not to testify. See Illinois Pattern Jury Instructions,
Criminal, No. 2.03 (4th ed. 2000).
On January 7, 2009, the jury returned guilty verdicts
on both charges. On February 20, defendant orally amended her
motion for acquittal or, in the alternative, a new trial to
allege the trial court erred in denying defendant's motion to
continue to retain private counsel. Defendant's motion did not
allege deficiencies in voir dire. The court again emphasized
"the matter was set for trial and had been on the call for a
considerable period of time." The court denied the motion as
amended and sentenced defendant to concurrent terms of 10 years'
imprisonment for aggravated battery and 3 years' imprisonment for
- 7 - obstructing justice. At that point, the State said, "Your Honor,
Ms. Staple also has [No.] 07[-]CF[-]349 pending. I would move to
dismiss that at this time." The court granted the State's motion
to dismiss. On April 27, the court denied defendant's motion to
reduce sentence, which failed to include either the court's
ruling on the motion to continue or its voir dire directions.
This appeal followed.
II. ANALYSIS
A. Motion To Continue To Retain Private Counsel
Defendant argues the trial court erred when it denied
defendant's motion to continue to retain private counsel and asks
this court to reverse and remand for a new trial. Specifically,
defendant argues the court abused its discretion by failing to
inquire into defendant's possible motives for requesting new
counsel on the day of trial and concluding "ipse dixit" her
purpose was to delay trial. The State responds the court acted
within its discretion because (1) defendant did not allege she
had in fact obtained substitute counsel who was ready, willing,
and able to proceed with the case and (2) the charges against
defendant had been pending sufficiently long for the court to
infer defendant was using her motion to continue to stall trial.
We agree with the State.
"The determination whether to grant a continuance for
substitution of counsel is a matter left to the discretion of the
- 8 - trial court, and will not be overturned absent an abuse of that
discretion." People v. Segoviano, 189 Ill. 2d 228, 245, 725
N.E.2d 1275, 1283 (2000). "[A] court abuses its discretion when
its decision is fanciful, arbitrary, or unreasonable to the
degree that no reasonable person would agree with it." People v.
Ortega, 209 Ill. 2d 354, 359, 808 N.E.2d 496, 500-01 (2004).
Factors to consider "in evaluating a trial court's exercise of
its discretion include the diligence of the movant, the right of
the defendant to a speedy, fair[,] and impartial trial, and the
interests of justice." Segoviano, 189 Ill. 2d at 245, 725 N.E.2d
at 1283.
A criminal defendant's right to counsel of choice is
constitutionally protected. Powell v. Alabama, 287 U.S. 45, 53,
77 L. Ed. 158, 162, 53 S. Ct. 55, 58 (1932); People v. Green, 42
Ill. 2d 555, 557, 248 N.E.2d 116, 117 (1969); see also People v.
Jones, 269 Ill. App. 3d 925, 932, 647 N.E.2d 612, 617 (1995),
overruled on other grounds by People v. Smith, 188 Ill. 2d 335,
721 N.E.2d 553 (1999). A trial court considering a motion to
continue to retain private counsel must balance defendant's
constitutional right against the interests in trying the case
efficiently. People v. Jackson, 216 Ill. App. 3d 1, 6, 574
N.E.2d 719, 723 (1991); see People v. Friedman, 79 Ill. 2d 341,
349, 403 N.E.2d 229, 234 (1980). Thus, "[a] defendant cannot
assert that right in order to, even temporarily, thwart the
- 9 - administration of justice or to otherwise impede the effective
prosecution of a crime." Jones, 269 Ill. App. 3d at 932, 647
N.E.2d at 617. To avoid trial delay, this court has ruled "[a
trial] court does not abuse its discretion in denying a defendant
a continuance to obtain substitute counsel where new counsel is
unidentified or does not stand ready, willing, and able to make
an unconditional entry of appearance on defendant's behalf."
Jones, 269 Ill. App. 3d at 932, 647 N.E.2d at 617. Especially
when a defendant cannot "articulate an acceptable reason for
desiring new counsel and is already being represented by an
experienced, court-appointed criminal lawyer, it is not an abuse
of discretion to deny defendant's trial-day request for a contin-
uance." Jackson, 216 Ill. App. 3d at 7, 574 N.E.2d at 723.
Factors indicating a defendant's diligence include the
defendant's opportunity to retain counsel and the steps the
defendant has taken toward retaining counsel. In Friedman, 79
Ill. 2d at 348, 403 N.E.2d at 233, for example, the supreme court
held the trial court did not err in denying a motion to continue
when defendant had more than 2 1/2 months to find substitute
counsel but first made contact with a potential substitute only
three days before trial and moved to continue on the day of trial
because counsel was unavailable. In People v. Free, 112 Ill.
App. 3d 449, 454, 445 N.E.2d 529, 532 (1983), this court affirmed
the trial court's denial of a motion to continue when the defend-
- 10 - ant "had ample time [from December 3, 1981, when counsel was
appointed, until March 2, 1982, when trial was set to begin,] to
attempt to obtain counsel of his own choosing if he so wished and
was able to do so." In People v. Terry, 177 Ill. App. 3d 185,
190-91, 532 N.E.2d 568, 572 (1988), this court affirmed the trial
court's denial of a motion to continue when the "[d]efendant was
represented by counsel for almost four months and at no time
prior to the day of trial complained about his representation, or
indicated a desire to obtain other counsel." A court may infer
from these two factors whether a defendant's motion is "really
for purposes of delay." Terry, 177 Ill. App. 3d at 190, 532
N.E.2d at 572.
The trial court did not abuse its discretion in this
case. Defendant admitted she had not hired substitute counsel,
and did not allege counsel was ready, willing, and able to
represent her. Moreover, the court considered the time defendant
had to find counsel and defense counsel's statement defendant had
only decided to substitute counsel on the morning of trial.
Defendant's initial refusal to provide the name of an attorney
with whom she had allegedly spoken about representing her was
also before the court. The court also found a continuance would
be prejudicial with respect to a defense witness who had been
transported from the Department of Corrections to testify. The
court was allowed to infer from these facts defendant was using
- 11 - her motion to continue "to *** thwart the administration of
justice or to otherwise impede the effective prosecution of a
crime."
In addition to these considerations by the trial court,
we note defendant was already represented by an able, court-
appointed criminal lawyer. Moreover, defendant did not allege in
her written motion, or in argument before the court, any specific
deficiencies in the public defender's representation that hiring
private counsel would address. Under these circumstances, the
court "could reasonably conclude that the request was made solely
for the purpose of delay." Friedman, 79 Ill. 2d at 349, 403
N.E.2d at 234.
Finally, we note "[t]he purpose of a review is to
evaluate the record of the trial court proceeding, and, in
general, the review will be limited to what appears in the
record." People ex rel. Walker v. Pate, 53 Ill. 2d 485, 503-04,
292 N.E.2d 387, 398 (1973). The trial court alluded twice to
defendant's pending case No. 07-CF-349 in ruling on defendant's
motion. There was no objection by either party. Neither party
moved to amend the record on appeal with information regarding
that charge, and neither party addresses this issue in its brief.
It appears the trial court may have considered defendant's
behavior in litigating her other case together with her behavior
in and the circumstances of the case immediately before the
- 12 - court. Defendant did not object, and both case numbers appear in
the caption for defendant's motion to continue. We would prefer
the record be complete, but the facts of record support the trial
court's exercise of discretion. We find the court did not abuse
its discretion in denying defendant's motion for a continuance to
seek private counsel.
B. Voir Dire
Defendant also contends the trial court erred by
failing to comply with the mandates of Supreme Court Rule 431(b).
Defendant argues the rule, as she maintains it ought to be
construed, would require the court to do more to ascertain the
jurors' understanding and willingness to abide by the principles
the rule addresses. Specifically, defendant argues the court
improperly delayed questioning potential jurors as required by
Rule 431(b) until after the parties had accepted them; because
she argues noncompliance with Rule 431(b) per se denies a defen-
dant a fair trial, she argues the error requires us to reverse
and remand for a new trial. The State argues (1) the court
satisfied the requirements of Rule 431(b) and (2) assuming
otherwise, the error is harmless. We agree with the State the
court did not err in its application of Rule 431(b).
Defendant concedes she failed to preserve the alleged
defect in the trial court's administration of Rule 431(b) for
review. Under the plain-error doctrine, however, a reviewing
- 13 - court may consider an unpreserved and otherwise forfeited error
"(1) where the evidence in the case is so closely balanced that
the jury's guilty verdict may have resulted from the error and
not the evidence[] or (2) where the error is so serious that the
defendant was denied a substantial right[] and thus a fair
trial." People v. McLaurin, 235 Ill. 2d 478, 489, 922 N.E.2d
344, 351 (2009). "[B]efore we consider application of the plain-
error doctrine to the case at bar, we must determine whether the
trial court erred in its application of Rule 431(b)." People v.
Willhite, No. 4-09-0158, slip op. at 7 (May 13, 2010), ___ Ill.
App. 3d ___, ___ N.E.2d ___. We review the court's compliance
with a supreme court rule de novo. People v. Suarez, 224 Ill. 2d
37, 41-42, 862 N.E.2d 977, 979 (2007).
Rule 431(b) (Official Reports Advance Sheet No. 8
(April 11, 2007), R. 431(b), eff. May 1, 2007) was principally
adopted to ensure trial-court compliance with the Supreme Court
of Illinois's decision in People v. Zehr, 103 Ill. 2d 472, 469
N.E.2d 1062 (1984). 177 Ill. 2d R. 431(b), Committee Comments,
at lxxix. In Zehr, the supreme court held a trial court erred
during voir dire by refusing to ensure jurors understood the
following four principles: (1) the State bears the burden of
proof, (2) the defendant need not present evidence on his own
behalf, (3) the State must prove the defendant's guilt beyond a
reasonable doubt, and (4) the defendant's decision not to testify
- 14 - must not be held against him. Zehr, 103 Ill. 2d at 477-78, 469
N.E.2d at 1064.
Prior to its 2007 amendment, Rule 431(b) required
defendants to request the trial court to question jurors regard-
ing their understanding of the Zehr principles. See 177 Ill. 2d
R. 431(b). In 2007, the supreme court amended Rule 431(b),
"plac[ing] an affirmative sua sponte duty on the trial courts to
ask potential jurors in each and every case whether they under-
stand and accept the Zehr principles." People v. Graham, 393
Ill. App. 3d 268, 273, 913 N.E.2d 99, 103 (2009); see also
Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b),
eff. May 1, 2007. Following amendment, Rule 431(b) now states as
follows:
"The court shall ask each potential
juror, individually or in a group, whether
that juror understands and accepts the fol-
lowing principles: (1) that the defendant is
presumed innocent of the charge(s) against
him or her; (2) that before a defendant can
be convicted the State must prove the defen-
dant guilty beyond a reasonable doubt; (3)
that the defendant is not required to offer
any evidence on his or her own behalf; and
(4) that the defendant's failure to testify
- 15 - 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 princi-
ples set out in this section." Official
Reports Advance Sheet No. 8 (April 11, 2007),
R. 431(b), eff. May 1, 2007.
Whether the trial judge's admonishments to the jury
constitute error under Rule 431(b) is controlled by our recent
precedent in Willhite, No. 4-09-0158, ___ Ill. App. 3d ___, ___
N.E.2d ___. In that case, a jury convicted the defendant at a
trial presided over by the same judge as the case at bar. The
trial court addressed the potential jurors in substantially the
same manner as here: it noted the Zehr principles before the
venire en masse, recited the principles to panels of four poten-
tial jurors before they were sworn in, and asked the potential
jurors whether they understood and assented to the principles.
In reaching our decision, we relied on language in the rule
requiring the trial court (1) to "ask each potential juror,
individually or in a group" (emphasis added) whether he under-
stands and accepts the principles (2) in a manner that provides
- 16 - "each juror an opportunity to respond to specific questions
concerning the principles." Official Reports Advance Sheet No. 8
(April 11, 2007), R. 431(b), eff. May 1, 2007. We held Rule
431(b) allows trial courts to ask potential jurors in panels
whether they understand and will follow the principles in com-
pound form and allows panels of potential jurors to answer in
unison. Further, we held Rule 431(b) questioning could occur
after potential jurors had been accepted and before they were
sworn in because, presumably, the court would dismiss any juror
who did not understand or would not affirm the principles. The
court's method of inquiry was sufficiently specific to afford
jurors an opportunity to respond, and the court itself did
nothing to discourage jurors from objecting to or asking about
the principles. Because the case at bar presents us with sub-
stantially the same facts, we decline to find error here.
We expand on our decision in Willhite, however, to
address and reject defendant's argument the trial court's proced-
ure contravened the rule's purpose as suggested by committee
comments. The committee comments to Rule 431(b) as it was
originally adopted state the rule "seeks to end the practice
where the judge makes a broad statement of the applicable law
followed by a general question concerning the juror's willingness
to follow the law." 177 Ill. 2d R. 431, Committee Comments, at
lxxix. Defendant argues the trial court's compound inquiry as to
- 17 - whether each panel of prospective jurors understood and would
follow all four Zehr principles is "precisely what the rule was
designed to prevent."
The present case is immediately distinguishable from
one in which "the judge makes a broad statement of the applicable
law followed by a general question concerning the juror's willin-
gness to follow the law." In People v. Emerson, 122 Ill. 2d 411,
522 N.E.2d 1109 (1987), for example, the supreme court affirmed a
death sentence after rejecting the defendant's challenge to the
trial court's voir dire. Emerson was decided after and in light
of Zehr but before adoption of Rule 431(b). In that case, the
court admonished the venire en masse as follows:
"'As I tell all jurors, I am the boss of
the law. So, considering that, is there any
juror, including the jurors that are out
there that will not follow the law as I give
it to them? Anybody? When I tell you the
law is a particular way, that's the law you
must follow.
Will everybody do it? Are you abso-
lutely sure? You might--everybody said yes.
I want you to remember that.'" Emerson, 122
Ill. 2d at 426, 522 N.E.2d at 1114.
Later, the court said, again to the entire venire:
- 18 - "'There's one thing I forgot to mention
to you before and that is that as the
[d]efendant sits in court at the present
time, he is presumed innocent. This in a
sense will remain with him throughout the
case until or if the State proves him guilty
beyond a reasonable doubt. So, if I were to
take the first twelve whose names I first
called out, told you to go back to the jury
room, give me a verdict at this time, I'm
sure all twelve of you would look at me and
say what's that man talking about. How could
we possibly go ahead and give a verdict at
this time since we haven't heard anything.
It would be absolutely wrong because if I
asked you to give me a verdict at this time,
your verdict would have to be not guilty
since you have not heard anything.
Until the State proves him guilty beyond
a reasonable doubt, he is not guilty, do you
understand? It goes to the fundamental as-
pect of our law in the United States.'"
Emerson, 122 Ill. 2d at 426, 522 N.E.2d at
1114.
- 19 - The supreme court held the trial court had "sufficiently complied
with Zehr" by asking whether the potential jurors would be able
to follow the law as the judge told it to them and later in-
structing the potential jurors with respect to the burden of
proof, the presumption of innocence and, by implication only, the
defendant's right not to present evidence. Emerson, 122 Ill. 2d
at 427, 522 N.E.2d at 1114-15.
The trial court's procedure in Emerson would likely not
now withstand scrutiny under amended Rule 431(b) (which the
supreme court had not yet adopted), because the trial court did
not pose sufficiently specific questions to potential jurors in
sufficiently small groups to afford each juror "an opportunity to
respond." In fact, the court asked the venire whether each
member would follow the law as the court expounded it and only
afterward instructed the jurors as to the Zehr principles. Thus,
the questioning did not address the jurors' attitudes toward the
Zehr principles specifically.
In contrast, the trial court in the present case
instructed the jury clearly and specifically with respect to the
Zehr principles. It then repeated the principles and asked small
groups of prospective jurors whether they understood the princi-
ples and then whether they would abide by the principles. We
conclude the court complied with Rule 431(b), and the court's
admonishments in this case were not the practice the supreme
- 20 - court sought to prohibit. We reject defendant's argument to the
contrary.
We find the trial court committed no error in reciting
the four Zehr principles to the venire and inquiring about the
jurors' understanding and acceptance of those principles in small
groups. Thus, we need not consider defendant's contention under
plain-error analysis.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment. As part of our judgment, we award the State its $50
statutory assessment against defendant as costs of this appeal.
Affirmed.
MYERSCOUGH, P.J., and POPE, J., concur.
- 21 -