People v. Yusuf

Opinion

NO. 4-08-0034

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 AHMED A. YUSUF, ) No. 06CF1876 Defendant-Appellant. ) ) Honorable ) Thomas J. Difanis, ) Judge Presiding. _________________________________________________________________

JUSTICE McCULLOUGH delivered the opinion of the court:

In October 2007, a jury convicted defendant, Ahmed A.

Yusuf, of armed robbery (720 ILCS 5/18-2(a)(2) (West 2006)). In

December 2007, the trial court sentenced him to seven years’

imprisonment. Defendant appealed, arguing the court erred in

failing to question the jurors during voir dire in compliance

with Illinois Supreme Court Rule 431(b) (Official Reports Advance

Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007)

regarding the jurors' understanding of the four basic constitu-

tional guarantees afforded criminal defendants at trial. In

November 2008, this court affirmed. People v. Yusuf, No. 4-08-

0034 (November 19, 2008) (unpublished order under Supreme Court

Rule 23).

The Supreme Court of Illinois denied defendant’s

petition for leave to appeal but issued a supervisory order

(People v. Yusuf, 233 Ill. 2d 598, 914 N.E.2d 489 (2009) (nonprecedential supervisory order on denial of petition for

leave to appeal) (No. 107674)) directing this court to vacate our

order and to reconsider in light of People v. Glasper, 234 Ill.

2d 173, 917 N.E.2d 401 (2009). In accordance with the supreme

court’s directions, we vacated our prior judgment and reconsider

in light of Glasper to determine whether a different result is

warranted. We reverse and remand.

On November 20, 2006, the State charged defendant with

two counts of armed robbery. At trial, Sarad Chandra, a conve-

nience store clerk, testified that shortly after 10 p.m. on

November 19, 2006, a man carrying a gun and dressed in dark

clothing and a ski mask came into the store and demanded money.

Chandra opened the register, and the man took the money and ran

out of the store. The store surveillance tape was played for the

jury.

The State also presented evidence at trial establishing

that on the evening of November 19, 2006, Maokun Li left his

office and was walking to his vehicle when defendant, wearing a

black ski mask, appeared from behind a bush. Defendant produced

a gun and ordered Li to give him his wallet and cellular phone.

Defendant also demanded Li’s personal identification number for

the debit card. Li testified defendant also threatened to shoot

him. According to Li’s testimony, defendant ordered Li to lay on

the ground and not to look at him. Li called the police after

- 2 - defendant fled. The police arrested defendant shortly thereaf-

ter.

Defendant did not present any evidence at trial. After

considering the State's evidence, closing arguments, and jury

instructions, the jury acquitted defendant of the armed robbery

of Chandra but found him guilty of the armed robbery of Li. The

trial court sentenced defendant as stated.

We affirmed (People v. Yusuf, No. 4-08-0034 (November

19, 2008) (unpublished order under Supreme Court Rule 23)), and

the supreme court denied defendant’s petition for leave to appeal

but directed this court to vacate our judgment and to reconsider

in light of Glasper.

As a threshold matter, we note our prior order in this

case relied on this court’s reasoning in People v. Stump, 385

Ill. App. 3d 515, 896 N.E.2d 904 (2008). However, following its

decision in Glasper, the supreme court issued a supervisory order

therein (People v. Stump, 233 Ill. 2d 592, 914 N.E.2d 490 (2009)

(nonprecedential supervisory order on denial of petition for

leave to appeal) (No. 107508)) directing this court to vacate its

order and reconsider its decision in light of Glasper despite

Glasper's application of prior Rule 431 and Stump's application

of the amended rule.

On appeal in the instant case, defendant claims the

trial court erred where it failed to comply with the mandates of

- 3 - Supreme Court Rule 431(b). Specifically, defendant argues the

procedure used by the court failed to allow the venire an oppor-

tunity to respond to or be questioned on the Zehr principles,

i.e., it failed to comply with the directives of Rule 431(b).

See People v. Zehr, 103 Ill. 2d 472, 477-78, 469 N.E.2d 1062,

1064 (1984).

In this case, defendant’s trial counsel did not object

at the time of the trial court’s error. In addition, defendant’s

posttrial motion did not allege the court failed to comply with

Rule 431(b). As a result, the issue has been forfeited. See

People v. Hestand, 362 Ill. App. 3d 272, 279, 838 N.E.2d 318, 324

(2005). Defendant, however, argues the court's failure to comply

with Rule 431(b) constitutes plain error affecting his right to a

fair trial by an impartial jury.

A plain-error analysis applies where the defendant

fails to make a timely objection in the trial court, while a

harmless-error analysis applies where the defendant timely

objects to the error. People v. Johnson, 388 Ill. App. 3d 199,

203, 902 N.E.2d 1265, 1268 (2009) (Third District). In this

case, defendant’s trial counsel did not object at the time of the

trial court’s error. In addition, defendant’s posttrial motion

did not allege the court failed to comply with Rule 431(b).

Because defendant failed to preserve the trial court’s error, we

analyze the error under the plain-error doctrine.

- 4 - A reviewing court may disregard a defendant's forfei-

ture and review the issue under the plain-error doctrine to

determine whether reversal is required. People v. Lewis, 234

Ill. 2d 32, 42, 912 N.E.2d 1220, 1226 (2009). The plain-error

doctrine allows a reviewing court to consider forfeited error

when (1) the evidence is closely balanced 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. Walker, 232 Ill. 2d

113, 124, 902 N.E.2d 691, 697 (2009). Under either prong of the

plain-error analysis, the defendant has the burden of persuasion.

Lewis, 234 Ill. 2d at 43, 912 N.E.2d at 1227. Before reviewing

the issue under the plain-error doctrine, however, we must first

determine whether any error occurred. People v. Piatkowski, 225

Ill. 2d 551, 565, 870 N.E.2d 403, 411 (2007).

"The supreme court's rules are not aspirational;

rather, they have the force of law." People v. Young, 387 Ill.

App. 3d 1126, 1127, 903 N.E.2d 434, 435 (2009), citing Bright v.

Dicke, 166 Ill. 2d 204, 210, 652 N.E.2d 275, 277-78 (1995). This

court reviews de novo a trial court’s compliance with a supreme

court rule. Young, 387 Ill. App. 3d at 1127, 903 N.E.2d at 435.

In Zehr, the Supreme Court of Illinois held a trial

court erred during voir dire by refusing defense counsel's

request to ask questions about (1) the State's burden of proof,

- 5 - (2) defendant's right to not testify, and (3) the presumption of

innocence. Zehr, 103 Ill. 2d at 477, 469 N.E.2d at 1064.

The supreme court amended Rule 431(b) to assure compli-

ance with its decision in Zehr. Adopted March 21, 2007, and

effective May 1, 2007, the rule now reads as follows:

"(b) 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

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." (Emphases

- 6 - added.) Official Reports Advance Sheet No. 8

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

2007.

The committee comments provide as follows:

"The new language is intended to ensure

compliance with the requirements of People v.

Zehr, 103 Ill. 2d 472[, 469 N.E.2d 1062]

(1984). It 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(b), Committee

Comments, at lxxix.

As of May 1, 2007, the plain language of Rule 431(b)

requires a trial court to (1) sua sponte question each potential

juror as to whether he understands and accepts the Zehr princi-

ples (2) in a manner that allows each juror an opportunity to

respond. As the voir dire in this case occurred in October 2007,

after the amendment became effective, the court was required to

comply with the rule as amended May 1, 2007.

At the beginning of voir dire, prior to the jurors

being sworn in, the trial court addressed the pool as follows:

"I want to go over some of those [jury]

instructions with you now so that you can

- 7 - keep them in perspective as you listen to the

testimony. The first instruction is *** that

the defendant is presumed to be innocent of

the charge[s] against him [(Rule 431(b) prin-

ciple (1))]. 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 of the evi-

dence in this case, you are convinced beyond

a reasonable doubt that he is guilty [(Rule

431(b) principle (2))].

The State has the burden of proving the

guilt 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 [(an apparent

reference to Rule 431(b) principle (3))]. In

connection with the last sentence, this de-

fendant, as does every citizen, possesses an

absolute right not to testify at his trial if

he so chooses. If the defendant chooses not

to testify, you will receive an instruction

that states that the fact the defendant did

not testify must not be considered by you in

- 8 - any way in arriving at your verdict [(Rule

431(b) principle (4))]." (Emphases added.)

During voir dire, the trial court questioned the

potential jurors about their previous experiences with the legal

system and whether they were familiar with the defendant, attor-

neys, or witnesses. The court also asked each juror whether he

or she could think of any reason why he or she could not be "fair

and impartial." While each of the 12 jurors selected to hear the

case answered those questions in the negative, the court did not

conduct Zehr questioning of individual jurors. As a result, the

court never directly questioned the individual jurors regarding

their understanding of the Zehr principles as required by the

second paragraph of amended Rule 431(b).

Prior to deliberations, the trial court gave the jury

Illinois Pattern Jury Instructions, Criminal, Nos. 2.03 and 2.04

(4th ed. 2000) (hereinafter IPI Criminal 4th), regarding (1)

defendant’s presumption of innocence, (2) the State’s burden of

proof, and (3) "[t]he fact that defendant did not testify must

not be considered by [the jurors] in any way in arriving at [a]

verdict."

In this case, the record shows the trial court did not

fully comply with Rule 431(b). While the court advised the

venire en masse of the four Zehr principles, it did not pose the

specific questions of whether the jurors understood and accepted

- 9 - all four of those principles during voir dire. See Official

Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May

1, 2007 ("[t]he court's method of inquiry shall provide each

juror an opportunity to respond to specific questions concerning

the principles set out in this section"). As a result, the court

in this case did not follow the mandate of Rule 431(b), and this

failure to comply constituted error.

Having found error, we next consider whether the error

was so serious that it affected the fairness of defendant's

trial. We note defendant does not argue the evidence was closely

balanced. Instead, defendant contends the error "allowed for the

possibility of a partial jury, which affects the integrity of the

judicial process and ignores [his] constitutional rights to a

fair trial." As a result, we confine our review to the second

prong of the plain-error analysis. See People v. Alexander, 396

Ill. App. 3d 563, 575, 919 N.E.2d 1016, 1026 (2009) (Third

District); see also People v. Blue, 189 Ill. 2d 99, 139, 724

N.E.2d 920, 941 (2000) (where a defendant has been denied the

right to a fair trial, a reviewing court must remedy the error to

preserve the integrity of the judicial process without regard to

the evidence against the defendant). "[I]n applying the plain-

error doctrine under either prong to an alleged instructional

error, an analysis of the facts and circumstances of each partic-

ular case is required." People v. Magallanes, 397 Ill. App. 3d

- 10 - 72, 93, 921 N.E.2d 388, 406 (2009).

In this case, the jurors were never asked whether they

understood and agreed defendant is not required to offer any

evidence and his failure to testify cannot be held against him.

A defendant’s right not to testify "'"is perhaps the most criti-

cal guarantee under our criminal process and is vital to the

selection of a fair and impartial jury that a juror understand

this concept." [Citation.]'" People v. Blanton, 396 Ill. App.

3d 230, 236, ___ N.E.2d ___, ___ (2009), quoting People v.

Brooks, 173 Ill. App. 3d 153, 158, 527 N.E.2d 436, 439 (1988)

(First District).

While the trial court advised the venire en masse of

the Zehr principles, it did not pose the specific questions of

whether the jurors understood and accepted any of those princi-

ples. Prior to the jurors being sworn in, the court simply read

the principles. During voir dire, the State and defense counsel

directly questioned the potential jurors. However, neither party

asked any juror about the four Zehr principles. Cf. People v.

Chester, 396 Ill. App. 3d 1067, 1075, ___ N.E.2d ___, ___ (2010)

(Fourth District, finding the trial court erred by failing to

address the fourth Zehr principle but declining to find plain

error where the defendant conceded defense counsel rectified the

error by addressing the fourth principle with the prospective

jurors).

- 11 - We find the trial court’s failure to fully comply with

the amended version of Rule 431(b) caused "a complete breakdown

of the judicial process that undermines this court's confidence

in the jury's verdict." People v. Owens, 394 Ill. App. 3d 147,

153, 914 N.E.2d 1280, 1285 (2009) (Fourth District, finding plain

error where the trial court addressed all four Rule 431(b)

principles to the venire en masse but failed to pose specific

questions to prospective jurors relating to any Rule 431(b)

principles). The court’s error here was "so substantial that it

affected the fundamental fairness of the proceeding," denied

defendant a substantial right, and thus a fair trial. Blanton,

396 Ill. App. 3d at 236, ___ N.E.2d at ___.

The fact that the trial court admonished the venire

before questioning and delivered IPI Criminal 4th Nos. 2.03 and

2.04--regarding the presumption of innocence, the State’s burden

of proof, and defendant’s decision not to testify--does not

excuse the court's failure to comply with the second paragraph of

Rule 431(b). Owens, 394 Ill. App. 3d at 153, 914 N.E.2d at 1285.

As a result, this court must reverse and remand for a new trial.

The supreme court’s recent decision in Glasper does not

alter the result in this case. In Glasper, 234 Ill. 2d at 189,

917 N.E.2d at 411-12, the supreme court addressed whether (1) the

trial court's failure to comply with preamended Rule 431(b)

requires a reviewing court to presume prejudice and automatically

- 12 - reverse defendant's conviction or (2) the error is subject to

harmless-error analysis. While the supreme court held the trial

court erred by not fully complying with Rule 431(b), it (1)

declined to find that a violation of Rule 431(b) is per se

reversible error and (2) concluded the error was harmless where

(a) no evidence was presented that the jury was biased and (b)

the evidence against the defendant was overwhelming. Glasper,

234 Ill. 2d at 199-201, 917 N.E.2d at 417-18.

However, the supreme court expressly limited its

holding in Glasper to the preamended version of Rule 431(b). As

a result, the decision does not purport to govern the application

of amended Rule 431(b), which is at issue in this case. See

Glasper, 234 Ill. 2d at 200, 917 N.E.2d at 418 (emphasizing "that

this holding is limited to the version of Rule 431(b)(4) that was

in effect at the time of the instant trial, and would not neces-

sarily apply to subsequent versions of the rule").

Unlike the preamended version of Rule 431(b) at issue

in Glasper, the protections provided by the Zehr principles are

extended to all defendants under amended Rule 431(b) and not only

those who choose to exercise them by requesting questioning.

People v. Graham, 393 Ill. App. 3d 268, 276, 913 N.E.2d 99, 106

(2009) (First District); compare 177 Ill. 2d R. 431(b) (where

questioning is optional absent a defendant’s request, which

triggers mandatory questioning) with Official Reports Advance

- 13 - Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007 (where

mandatory questioning is automatic and a defendant’s request is

unnecessary).

This distinction is consistent with other recent

appellate court decisions (1) finding plain error based on the

fact that the trial court’s failure to comply with amended Rule

431(b) denied the defendants a substantial right and (2) conclud-

ing the holding in Glasper was limited to the prior version of

Rule 431(b). See, e.g., Blanton, 396 Ill. App. 3d at 236, 238,

___ N.E.2d at ___, ___ (Fourth District); see also, e.g., People

v. Madrid, 395 Ill. App. 3d 38, 47, 916 N.E.2d 1273, 1281 (2009)

(First District); People v. Blair, 395 Ill. App. 3d 465, 478-79,

917 N.E.2d 43, 56-57 (2009) (Second District); People v.

Wilmington, 394 Ill. App. 3d 567, 572, 575-76, 915 N.E.2d 882,

886, 889 (2009) (First District); Graham, 393 Ill. App. 3d at

275-76, 913 N.E.2d at 105-06 (First District).

Finally, we find the evidence presented at trial was

sufficient to sustain defendant's conviction. Although we reach

no conclusion binding on retrial as to defendant's guilt, we

conclude that double jeopardy does not bar a retrial of defen-

dant. See Walker, 232 Ill. 2d at 131, 902 N.E.2d at 700.

For the reasons stated, we reverse defendant's convict-

ion and remand for a new trial.

Reversed and remanded.

- 14 - MYERSCOUGH, P.J., and KNECHT, J., concur.

- 15 -