People v. Yerger

2022 IL App (1st) 200640-U

• Court: Appellate Court of Illinois
• Decided: April 8, 2022
• Docket: 1-20-0640
• Status: Unpublished

Opinion

2022 IL App (1st) 200640-U No. 1-20-0640 Order filed April 8, 2022 Sixth 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. 19 CR 7797 ) MACIO YERGER, ) Honorable ) Ursula Walowski, Defendant-Appellant. ) Judge, presiding.

JUSTICE SHARON ODEN JOHNSON delivered the judgment of the court. Presiding Justice Pierce and Justice Mikva concurred in the judgment.

ORDER

¶1 Held: We affirm defendant’s conviction for aggravated domestic battery where the trial court complied with Illinois Supreme Court Rule 431(b) (eff. July 1, 2012).

¶2 Following a jury trial, defendant Macio Yerger was convicted of aggravated domestic

battery (720 ILCS 5/12-3.3(a-5) (West 2018)) and sentenced to three years’ imprisonment. On

appeal, defendant argues that the circuit court violated Illinois Supreme Court Rule 431(b) (eff. No. 1-20-0640

July 1, 2012) by asking the veniremembers to raise their hands if they did not both understand and

accept the principles set out in People v. Zehr, 103 Ill. 2d 472 (1984). We affirm.

¶3 Defendant was charged by information with aggravated domestic battery predicated on

strangling Roxanne Smith on April 14, 2019 (720 ILCS 5/12-3.3(a-5) (West 2018)) (count I);

strangling Smith on April 21, 2019 (720 ILCS 5/12-3.3(a-5) (West 2018)) (count II), and; shoving

Smith into a window on April 21, 2019, causing great bodily harm (count III) and permanent

disfigurement (count IV) (720 ILCS 5/12-3.3(a) (West 2018)). Because defendant does not

challenge the sufficiency of the evidence to sustain his conviction we recount the facts to the extent

necessary to resolve the issue on appeal.

¶4 During voir dire, the court admonished the venire:

“Under the law the defendant is presumed innocent of the charges against him and

this presumption remains with the defendant at every stage of the trial and your

deliberations on your verdict and is not overcome unless and until a jury is convinced

beyond a reasonable doubt the defendant is guilty. Does everyone understand and accept

this principle of law? Only raise your hand if you do not accept it or do not understand it.

Let the record reflect no one has raised their hand.

The State has the burden of proving the defendant guilty beyond a reasonable doubt

and the State carries this burden throughout the case. Does everyone understand and accept

this principle of law? Raise your hand once again if you do not accept it or you do not

understand it. Let the record reflect no one has raised their hand.

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And a defendant is not required to prove his innocence. The defendant need not

present any evidence at all and rely on the presumption of innocence. Does everyone

understand and accept this principle of law? Raise your hand if you do not.

And finally, the defendant does not have to testify and you cannot hold it against

the defendant if he chooses not to testify. Does everyone understand and accept this

principle of law? Raise your hand if you do not understand or accept it. Let the record

reflect no one has raised their hand.”

¶5 At trial, Smith testified that she and defendant were dating on April 14, 2019. During an

argument that evening, defendant flipped Smith’s bed while she sat on it. She hit him in the back

of the head multiple times, then he choked her for 5 to 10 seconds. She did not suffer any visible

injuries.

¶6 In the early morning of April 21, 2019, Smith left defendant at her apartment to go to a

restaurant and a barber shop where people were gathered. When she returned 10 or 15 minutes

later, defendant confronted her about how long she was gone and took her phone. Smith hit

defendant and they began “tussling” over the phone. During the confrontation, defendant choked

her for 5 to 10 minutes, then threw her by her shoulders into a window. The window shattered, and

chunks of glass cut Smith and became lodged in her neck. Defendant called an ambulance and

paramedics transported Smith to the hospital. Smith underwent surgery, and sustained scars on her

neck and back from the shattered glass.

¶7 The State entered a stipulation that a doctor would testify that two foreign objects

approximately 0.5 centimeters thick and at least 8 centimeters long were lodged in Smith’s left

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posterior lateral neck region, and more fragments were lodged in her left paramidline posterior

neck.

¶8 Following closing arguments, the jury acquitted defendant of count I and found him guilty

of counts II-IV. The court denied defendant’s motion for a new trial. Following a hearing, the court

merged counts III and IV into count II, aggravated domestic battery premised on strangling Smith,

and sentenced him to three years’ imprisonment. The court denied defendant’s motion to

reconsider sentence.

¶9 Defendant now appeals, arguing that, during voir dire, the court failed to comply with

Illinois Supreme Court Rule 431(b) (eff. July 1, 2012). Defendant contends that the court did not

implement the requisite question-and-response framework when it asked the veniremembers if

they understood and accepted the principles set out in Zehr, 103 Ill. 2d at 477-78, and instructed

them to raise their hands if they did not.

¶ 10 In setting forth this argument, defendant acknowledges that he did not preserve the issue

for our review by objecting during voir dire and raising the issue in his posttrial motion. See People

v. Thompson, 238 Ill. 2d 598, 611 (2010) (“To preserve a claim for review, a defendant must both

object at trial and include the alleged error in a written posttrial motion.”). However, to avoid

forfeiture of the claim, defendant requests plain-error review.

¶ 11 The plain-error rule allows us to review unpreserved issues when a clear or obvious error

occurred and (1) “the evidence is so closely balanced that the error alone threatened to tip the

scales of 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.” (Internal quotation marks omitted.)

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Id. at 613. Here, defendant only asserts that the evidence was closely balanced. See People v.

Birge, 2021 IL 125644, ¶ 24 (Rule 431(b) violation is not cognizable under second prong plain

error doctrine). The first step of plain-error review is to determine whether error occurred. Id. For

the following reasons, we find no error.

¶ 12 In Zehr, our supreme court explained that potential jurors must know “that a defendant is

presumed innocent, that he is not required to offer any evidence in his own behalf, that he must be

proved guilty beyond a reasonable doubt, and that his failure to testify in his own behalf cannot be

held against him.” Zehr, 103 Ill. 2d at 477. Thus, Rule 431(b) 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 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 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.” Ill. S. Ct. R. 431(b)

(eff. July 1, 2012).

¶ 13 The rule requires “ ‘a specific question and response process.’ ” People v. Wilmington,

2013 IL 112938, ¶ 32 (quoting Thompson, 238 Ill. 2d at 607). We review compliance with Rule

431(b) de novo. Id. ¶ 26.

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¶ 14 Here, the trial court complied with Rule 431(b). The court explained (1) that defendant was

presumed innocent; (2) the State had the burden of proving defendant guilty beyond a reasonable

doubt; (3) defendant did not have to present any evidence; and (4) defendant did not have to testify,

and the jury could not hold it against him if he decided not to testify. The court recited each

principle separately. After reciting a principle, the court asked whether the venire understood and

accepted that principle. For the third principle, the court then asked for the veniremembers to raise

their hands if they did not. For the other principles, the court then asked the veniremembers to raise

their hands if they did not understand “or” accept the principle. Thus, the court asked the

veniremembers whether they understood and accepted each principle, and allowed them an

opportunity to respond by raising their hands if they did not.

¶ 15 Although not cited by either party, this court’s decision in People v. Gilliam, 2013 IL App

(1st) 113104, is instructive. There, the trial court admonished the veniremembers of the Zehr

principles, asking after each principle for the veniremembers to raise their hands if they had “any

quarrel” with that principle. Gilliam, 2013 IL App (1st) 113104, ¶ 49. The court then offered a

hypothetical explanation of how the four principles worked in concert. Id. The court continued:

“Is there anybody here *** who cannot apply those four propositions of law in the

manner that I’ve indicated? If so, raise your hand.

All right, then I take it that all of you both understand and accept these four

propositions of law. If not, raise your hand.” Id.

¶ 16 On appeal, the defendant argued that the court violated Rule 431(b) by, inter alia, asking

whether the veniremembers quarreled with the principles without asking if they understood them.

Id. ¶ 50. We concluded that the court used the appropriate question and response process to ask

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whether the veniremembers understood and accepted the Zehr principles by stating: “All right,

then I take it that all of you both understand and accept these four propositions of law. If not, raise

your hand.” (Emphasis in original.) Id. ¶ 52.

¶ 17 Here, as in Gilliam, the court employed a question and response format to ask whether the

veniremembers understood and accepted the Zehr principles. Specifically, the record shows the

court asked the veniremembers (1) whether they understood and accepted each Zehr principle, (2)

to raise their hands if they did not understand and accept the third principle, and (3) to raise their

hands if they did not understand “or” accept the other principles. Thus, the court used the

appropriate question and response process to ask whether the veniremembers understood and

accepted the Zehr principles.

¶ 18 Defendant nevertheless contends that the court should have told the veniremembers to raise

their hands if they did not understand “and” accept the principles, instead of, for three of the

principles, to raise their hands if they did not understand “or” accept them. Functionally, however,

asking the veniremembers to raise their hands if they did not understand “or” accept the principles

worked identically to asking them to raise their hands if they did not understand “and” accept the

principles; in either case, the veniremembers knew to raise their hand if they did not both

understand and accept any of the Zehr principles.

¶ 19 We also disagree that the court violated Rule 431(b) by asking for a show of hands instead

of requiring the veniremembers to verbalize their understanding and acceptance of the Zehr

principles. See Birge, 2021 IL 125644, ¶ 27 (Rule 431(b) does not require jurors’ response be

conveyed orally rather than by showing of hands); People v. Joseph, 2021 IL App (1st) 170741,

¶ 28 (noting that court’s request for show of hands if court wrongly assumed that venire accepted

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and understood Zehr principles “was the functional equivalent of a question that sought to confirm

the jurors’ acceptance and understanding, tracking verbatim the language that Rule 431(b)

requires”); see also Gilliam, 2013 IL App (1st) 113104, ¶ 52 (finding that court’s request for show

of hands if any veniremember did not understand and accept the principles satisfied the requisite

question and response process).

¶ 20 Defendant nevertheless maintains that the trial court’s process was confusing, comparing

his case to People v. Dismuke, 2017 IL App (2d) 141203. In Dismuke, the court admonished the

venire:

“I am going to explain to you certain principles, and if you understand the principles, agree

with those principles and accept those principles, please do not raise your hand and that

will signify that you understand, you agree and you accept these principles. If you don’t

understand or accept these principles or don’t agree with them, I would ask that you raise

your hand in response to my question.” (Emphasis omitted.) Dismuke, 2017 IL App (2d)

141203, ¶ 78 (Burke, J., specially concurring).

The court then recited each of the Zehr principles, asking the venirepersons after each one to raise

their hands if they had “any difficulty or disagreement” with that proposition of law. Id. (Burke,

J., specially concurring).

¶ 21 On appeal, we concluded that the trial court in Dismuke violated Rule 431(b) by giving the

venirepersons “three different instructions about what they were supposed to do with their hands,”

and improperly substituting “difficulty or disagreement” for “understand and accept.” (Internal

quotation marks omitted.) Id. ¶¶ 53-55. We noted that, “[r]ather than make the procedure so

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convoluted, it was necessary only to recite the principles and ask the potential jurors one question:

whether they understood and accepted the principles.” Id. ¶ 55.

¶ 22 Here, unlike in Dismuke, the trial court did not give confusing instructions about when the

venirepersons were to raise their hands—as noted, the court made clear that they were to raise their

hands if they did not both understand and accept the principle just recited. Nor did the court

substitute any other words for “understand” and “accept.” Rather, the court asked exactly what

Dismuke advised: “whether [the veniremembers] understood and accepted the principles.” Id.

¶ 23 Defendant further argues that the court violated Rule 431(b) by asking the veniremembers

to raise their hands if they did not understand and accept the propositions, rather than posing a

question seeking an affirmative response. As defendant acknowledges, however, responses to the

Rule 431(b) questions need not be in the affirmative. People v. Lilly, 2018 IL App (3d) 150855,

¶ 15. In Lilly, we noted “[i]t would be imprudent to find error based solely upon the syntactical

structure” of the court’s questions. Id. For example, we noted that a court would comply with Rule

431(b) by asking, “ ‘does any member of the venire not understand and accept those principles?’ ”

Id. Here, the court asked essentially the same question.

¶ 24 Lastly, we acknowledge that the court did not state for the record that no veniremember

raised their hand when the court instructed the veniremembers to do so if they did not understand

and accept that defendant was not required to prove his innocence or present any evidence.

Defendant argues this violated Rule 431(b), but cites no authority to support his position. We do

not believe the court’s failure to record that no veniremember raised their hand constituted error.

The court asked whether the venire understood and accepted the proposition, and instructed them

to raise their hands if they did not. By doing so, the court asked a specific question regarding the

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principle and gave the veniremembers an opportunity to respond, as the rule requires. Ill. S. Ct. R.

431(b) (eff. July 1, 2012) (“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)); see also Thompson, 238 Ill. 2d at 607 (“The rule requires an opportunity for a response

from each prospective juror on their understanding and acceptance of those principles.” (emphasis

added)).

¶ 25 As the trial court complied with Rule 431(b), there has been no error. Accordingly, there

can be no plain error. See Thompson, 238 Ill. 2d at 613 (first inquiry in plain-error review is

whether error occurred). We therefore need not address defendant’s argument that the evidence

was closely balanced. See Birge, 2021 IL 125644, ¶ 42 (declining to address closely-balanced

argument where no Rule 431(b) error occurred).

¶ 26 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 27 Affirmed.

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