                             2018 IL App (2d) 160018 

                                  No. 2-16-0018

                            Opinion filed June 13, 2018 

______________________________________________________________________________

                                            IN THE


                             APPELLATE COURT OF ILLINOIS


                              SECOND DISTRICT

______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Stephenson County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 15-CF-93
                                       )
MICHAEL L. DANIEL,                     ) Honorable
                                       ) Michael P. Bald,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE JORGENSEN delivered the judgment of the court, with opinion.
       Justices Hutchinson and Burke concurred in the judgment and opinion.

                                           OPINION

¶1     Defendant, Michael L. Daniel, appeals his conviction of aggravated battery to a

community policing volunteer (720 ILCS 5/12-3.05(d)(4) (West 2014)).        He contends that the

trial court plainly erred in its questions to prospective jurors under Illinois Supreme Court Rule

431(b) (eff. July 1, 2012) because (1) the court failed to inquire whether the jurors understood

the principles listed in the rule and (2) the evidence was closely balanced.      We agree and

reverse and remand for a new trial.

¶2                                     I. BACKGROUND

¶3     Defendant was charged with multiple crimes, including one count of aggravated battery to

a community policing volunteer and one count of aggravated battery to a police officer (720 ILCS
2018 IL App (2d) 160018


5/12-3.05(d)(4) (West 2014)) for allegedly kicking police officer Ryan Wagand and pushing


community policing volunteer Tim Barth. In June 2015, a jury trial was held.


¶4     During jury selection, the court questioned the entire venire as follows:


       “These are what we call the fundamental propositions and I have to ask these of you each

       individually.    I must determine that each potential juror understands and accepts each of

       the following principles.    The rules require that I ask each of you individually whether

       you do understand and accept each of these because these principles are fundamental to

       the American system of justice.

                These are the kind of things that I hope you people in the back row listen to as

       well.    First of all, the defendant is presumed innocent of the charges against him. He is

       not required to produce any evidence on his own behalf.      Before any defendant may be

       convicted, the State must prove the defendant guilty beyond a reasonable doubt.          The

       defendant need not testify and if he chooses not to testify, that fact cannot be held against

       him.

                Okay.   Now, I’m going to ask you individually whether you agree with those,

       okay.”

¶5     The court then asked each prospective juror whether he or she heard the propositions,

whether he or she agreed with them, and whether he or she disagreed with any part of them.

When additional prospective jurors were called up in small groups, the court each time repeated

the propositions, asked whether the prospective jurors heard them and agreed with them, and

asked whether they disagreed with any part of them.            One prospective juror, who had

previously served on the jury in a criminal case, was asked if she understood that the State’s




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burden to prove the defendant guilty beyond a reasonable doubt was the same.      The prospective

jurors were not otherwise asked if they understood the propositions.

¶6     At trial, Antalina Dominguez testified that, on April 11, 2015, she was having a birthday

party for her niece when two officers stopped by and asked that they turn their music down.

There was another party three houses down the street, and the police went there and told them to

turn down their music too.     Fights then broke out at the other house. Dominguez testified that

the officers were being pushed or attacked and were getting swarmed into a corner. Dominguez

called 911.   Dominguez’s sister testified that she witnessed arguing and saw the officers get

pushed back toward the house. She said that the situation was escalating and chaotic.        Four

other officers arrived, and arrests were made. She said that she did not see anyone physically

push the officers, because it was hard to see anything.   Neither woman identified defendant as a

person they saw pushing any officer.

¶7     Another neighbor, Lillian Collins, also called the police because she saw about 50 to 100

people and 5 officers yelling and arguing behind her house.     She said that two or three people

pushed the police and that the police slammed those people to the ground and arrested them.

Some people in the crowd were trying to calm others down, and the crowd started to leave when

an officer announced that pepper balls would be used.      Collins could not identify defendant as

being in the crowd.

¶8     Officer Andrew Laurent testified that he responded to a call about loud music and saw

defendant sitting in a chair behind the house.   Wagand and Barth were initially at another house

but then came to Laurent’s location.     A man, David Thurman, pulled up in a car, and at least

three people at the party approached him aggressively.      According to Laurent, defendant was

not among them.       The officers kept Thurman separated from the group and kept people away by



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pushing them back.    Thurman told Laurent that he was there because he did not want his young

son to be at the party.   Thurman’s son was crying, so Laurent knelt down and asked the son if

he wanted to go with Thurman. A man who lived at the house, Marlon Wilson, then came over,

put his arm around Thurman’s son, and yelled at the son not to talk to Laurent.      When Laurent

pulled Marlon’s arm off of the son, Marlon charged him.           Laurent shoved Marlon, a large

crowd poured in, and the scene became extremely chaotic. Marlon was arrested.               Laurent

recalled seeing defendant on the ground being arrested by other officers and testified that

defendant kicked an officer.    On direct examination, he said that he saw defendant, who was

flailing around and kicking, punch Barth in the back of the shoulder, but on cross-examination he

said that he did not see defendant push Barth.

¶9     Barth testified that he was a Freeport community policing volunteer.         He said that he

saw Thurman shove defendant and that they were yelling at each other.        He said that defendant

tried to get to Thurman, Barth stepped in front of him, and defendant then pushed him in the

chest. Barth grabbed defendant and started pushing him backward while other officers tried to

handcuff him.    He saw defendant flailing on the ground but did not see him kick anyone.

¶ 10   Wagand testified that defendant was part of the initial group that approached Thurman.

Wagand saw officers struggling with defendant.           However, he did not see what led to

defendant’s arrest or see him push or punch Barth.     He testified that, when he ran over to assist,

defendant kicked him in the knee.     Wagand said that he did not notice Marlon as part of the

initial group that approached Thurman, but he acknowledged that he wrote a report stating that

he saw Marlon, defendant, and Thurman pushing each other.

¶ 11   Another officer, who was five or six feet away, testified that he saw, out of the corner of

his eye, defendant push Barth with two hands.      Still another officer who was nearby testified



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2018 IL App (2d) 160018


that he saw defendant shove Barth in the chest with two hands.        Neither saw defendant kick

Wagand.     Yet one more officer, who arrived while defendant was being arrested, said that he

did not see defendant shove or kick anyone.

¶ 12     Marjorie Wilson, who lived at the house, testified for defendant.          She said that

defendant lived at the house and was dating her daughter.          On April 11, 2015, they were

holding a party.    Defendant was not drinking.     She denied that defendant was involved in the

fight.   She said that two men other than defendant and Marlon initially approached Thurman.

According to Marjorie, when Laurent tried to talk to Thurman’s son, Marlon told the son not to

talk to him, and defendant grabbed Marlon and told him, “come on let’s go.           You can’t do

nothing to them.” The officers then grabbed defendant and threw him to the ground.        Marjorie

said that she was with defendant and did not see him punch, push, or kick any of the officers.

She said that the police were not pushed or shoved by anyone.        She was about six feet away

when she witnessed the events.     During the events, a crowd formed of people from around the

area who were not invited to the party, although they were not in the immediate area of the fight.

¶ 13     Defendant’s girlfriend testified and corroborated Marjorie’s testimony by stating that she

was watching defendant the whole time, that he did not punch, push, or kick anyone, and that the

police were not pushed or shoved by anyone.       She said that she was about 15 feet away and that

nothing was obstructing her vision.      Another of Marjorie’s daughters also provided similar

testimony, stating that defendant was trying to calm Marlon down, that officers threw him to the

ground, and that she did not see him punch, push, or kick anyone.        She too testified that the

police were not shoved or swarmed by the crowd.           She was about 20 feet away and saw

everything clearly.




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¶ 14   Thurman testified that, when he arrived, he initially argued with three men, none of

whom he identified as Marlon or defendant.        He specifically said that defendant was not

involved in the argument. Thurman testified that the officers were not cornered by the crowd

and that defendant did not touch any officer, but that the police pushed him back, grabbed him,

and slammed him to the ground.    He did not see defendant kick or push anyone.     Thurman was

about 18 to 20 feet away at the time. Thurman was impeached with prior drug convictions.

Marlon also testified consistently with the others, stating that defendant was not in the initial

group that approached Thurman, that the police were not surrounded, and that defendant did not

push, punch, or kick anyone. Marlon had a prior theft conviction.

¶ 15   Four guests at the party generally testified consistently that defendant was not arguing

with Thurman, was trying to calm things down, and did not punch, push, or kick anyone.       One,

who was across the alley, said that everyone was crowded around the officers.       Another said

that the police were amidst a bunch of people but that no one was pushing or swarming them.

A third, who was not very close and kept his distance, did not see defendant push, punch, or kick

anyone but also did not see what happened right before defendant was taken to the ground.       A

fourth, who was on the patio with an unobstructed view, but who was impeached with prior

convictions, said that officers pushed defendant and tackled him.

¶ 16   The jury found defendant not guilty of aggravated battery to a police officer but guilty of

aggravated battery to a community policing volunteer. Defendant moved for a new trial but did

not raise any issue with the questioning of the prospective jurors. The motion was denied, and

he was sentenced to 4½ years’ incarceration.   He appeals.

¶ 17                                     II. ANALYSIS




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¶ 18   Defendant contends that the trial court failed to comply with Rule 431(b) because,

although the court inquired whether the prospective jurors agreed with the principles set forth in

the rule, it failed to inquire whether they understood those principles.   Defendant concedes that

he forfeited the issue by failing to raise it in the trial court but argues that it is plain error

requiring reversal because the evidence was closely balanced.

¶ 19   To preserve a claim for review, a defendant must both object at trial and include the

alleged error in a written posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988). The

plain-error doctrine allows a reviewing court to consider unpreserved error where either (1) a

clear or obvious error occurs and the evidence is so closely balanced that such error threatens to

tip the scales of justice against the defendant, regardless of the seriousness of the error, or (2) a

clear or obvious error occurs and is so serious that it affects the fairness of the defendant’s trial

and challenges the integrity of the judicial process, regardless of the closeness of the evidence.

People v. Walker, 232 Ill. 2d 113, 124 (2009).         In both instances, the burden of persuasion

remains on the defendant. People v. Herron, 215 Ill. 2d 167, 187 (2005) (citing People v.

Hopp, 209 Ill. 2d 1, 12 (2004)).     The first step in conducting plain-error review is to determine

whether error occurred at all.    Walker, 232 Ill. 2d at 124.

¶ 20   Rule 431(b) contains the four commonly known “Zehr principles.” See People v. Zehr,

103 Ill. 2d 472, 477 (1984).     It provides:

               “(b) 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) if a



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       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.”   Ill. S. Ct. R. 431(b) (eff. July 1, 2012).

¶ 21   The court’s method of inquiry shall provide each prospective juror an opportunity to

respond to specific questions concerning the principles set out in the rule.    Id. Our supreme

court has emphasized that the trial court must ensure that each prospective juror both understands

and accepts each of the four principles.   People v. Belknap, 2014 IL 117094, ¶¶ 44-46; People

v. Wilmington, 2013 IL 112938, ¶ 32; People v. Thompson, 238 Ill. 2d 598, 607 (2010).           The

questions may be asked of the prospective jurors individually or by group, but in either event

Rule 431(b) contemplates “ ‘a specific question and response process.’ ”     Wilmington, 2013 IL

112938, ¶ 32 (quoting Thompson, 238 Ill. 2d at 607).

¶ 22   In Thompson, our supreme court held that it was error for a trial court to ask jurors

whether they understood the Zehr principles without also asking whether they accepted them.

Thompson, 238 Ill. 2d at 607.   However, we later held that the opposite was sufficient.     People

v. Blankenship, 406 Ill. App. 3d 578, 581 (2010).

¶ 23   In Blankenship, the prospective jurors were asked if they “agreed with” the Zehr

principles but were not asked if they understood them. Id.      We noted that “agreement” implies

“acceptance.”   Id. at 583. We also noted that a rational juror would not claim to accept the

Zehr principles unless the juror believed that he or she understood them. Id. at 582.      Thus, for

purposes of Rule 431(b), we held that acceptance implied understanding and that it was not error

for the trial court to fail to ask the prospective jurors if they understood the principles when it

had asked if they accepted or agreed with them.        Id.   We distinguished Thompson because,

unlike acceptance implying understanding, understanding did not imply acceptance. Id. at 583.



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The First District subsequently held similarly.       See People v. Quinonez, 2011 IL App (1st)

092333, ¶¶ 48-50.

¶ 24     However, our supreme court has since held that it is error for a trial court to ask whether

prospective jurors disagree with the principles but fail to also ask whether they understand them.

Belknap, 2014 IL 117094, ¶ 46; Wilmington, 2013 IL 112938, ¶ 32.          In those cases, the court

held that “the trial court committed error when it failed to ask prospective jurors whether they

both understood and accepted the principles set forth in Rule 431(b).” (Emphasis in original.)

Belknap, 2014 IL 117094, ¶ 46. The court stated that “it may be arguable that asking jurors

whether they disagreed with the Rule 431(b) principles is tantamount to asking them whether

they accepted those principles. However, the trial court’s failure to ask whether the jurors

understood the principles constitutes error alone.” Id. (citing Wilmington, 2013 IL 112938,

¶ 32).

¶ 25     Here, error occurred.   While the trial court asked whether the prospective jurors agreed

with the principles, it did not ask whether they understood them.       The State does not discuss

Belknap and attempts to distinguish Wilmington on the basis that the trial court there asked

whether the prospective jurors disagreed with the principles, while here the court asked if the

prospective jurors agreed with them.      But in Wilmington, as in Belknap, the court explicitly

stated that the failure to ask the prospective jurors whether they understood the principles

constitutes error alone.   Belknap, 2014 IL 117094, ¶ 46; Wilmington, 2013 IL 112938, ¶ 32.

Thus, under Wilmington and Belknap, the trial court must ask each prospective juror whether he

or she both understands and accepts the principles.       Having found error, the next question is

whether it was plain error.




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¶ 26       A Rule 431(b) violation is not cognizable under the second prong of the plain-error

doctrine absent evidence that the violation produced a biased jury.      People v. Sebby, 2017 IL

119445, ¶ 52.      Defendant does not contend that the error produced a biased jury and argues only

that the evidence was closely balanced under the first prong of the doctrine.

¶ 27       “In determining whether the evidence adduced at trial was close, a reviewing court must

evaluate the totality of the evidence and conduct a qualitative, commonsense assessment of it

within the context of the case.” Id. ¶ 53.     “That standard seems quite simple, but the opposite

is true.    A reviewing court’s inquiry involves an assessment of the evidence on the elements of

the charged offense or offenses, along with any evidence regarding the witnesses’ credibility.”

Id.

¶ 28       In Sebby, the defendant was charged with felony resisting a peace officer (720 ILCS

5/31-1(a-7) (West 2010)). Sebby, 2017 IL 119445, ¶ 1.           That charge required the State to

prove in part that the defendant knowingly resisted a peace officer and that his resistance was the

proximate cause of an injury to that officer. 720 ILCS 5/31-1(a-7) (West 2010).               On the

resistance element, the three responding officers testified that the defendant resisted.      Sebby,

2017 IL 119445, ¶¶ 55-56.        Three other witnesses, including the defendant, testified that the

defendant did not resist and was instead being yanked around by the officers.     Id. ¶¶ 57-58.

¶ 29       The Sebby court concluded that the evidence was closely balanced.    Id. ¶ 61.   The court

observed that the State’s witnesses provided accounts that were consistent with each other, as did

the defendant’s witnesses.       Id.   Neither party’s version of events was fanciful.      Id.   The

court rejected the State’s argument that the testimony of the defendant’s witnesses was less

plausible because those witnesses were relatives or friends of the defendant and might be biased.

Id. ¶ 62.     The court also noted that neither party’s version of events was supported by extrinsic



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corroborating evidence.   Id. The court found that, as in People v. Naylor, 229 Ill. 2d 584

(2008), the outcome of the trial depended on a “ ‘contest of credibility’ ” between the officers

and the defendant.   Sebby, 2017 IL 119445, ¶ 63 (quoting Naylor, 229 Ill. 2d at 606-07). The

court explained that, because the outcome depended on two versions of events that were both

credible, the evidence was closely balanced.   Id. (citing Naylor, 229 Ill. 2d at 608).

¶ 30   Generally, where courts have found no “credibility contest,” one party’s version of events

was either implausible or corroborated by other evidence.       See, e.g., People v. Effinger, 2016 IL

App (3d) 140203, ¶ 26 (circumstantial evidence supported victim’s version of events); People v.

Tademy, 2015 IL App (3d) 120741, ¶¶ 19-20 (no “credibility contest” between experts where lay

testimony corroborated one expert’s testimony); People v. Lopez, 2012 IL App (1st) 101395,

¶¶ 88-90 (evidence not closely balanced where circumstantial evidence supported State’s

witnesses’ testimony while defendant’s version of events “strained credulity”); People v.

Anderson, 407 Ill. App. 3d 662, 672 (2011) (evidence not closely balanced where defendant’s

version of events was implausible).

¶ 31   Here, the evidence was closely balanced.         As in Sebby, the case presented a credibility

contest between the State’s witnesses and defendant’s witnesses.             Both parties presented

plausible versions of the events, with each side providing some evidence that was consistent with

that of other witnesses and some that was not consistent.

¶ 32   The State argues that defendant’s version of events was implausible because his

witnesses consisted of his friends and family, but the court in Sebby rejected such an argument.

The State also argues that the neighbors’ testimony corroborated the police officers’ testimony.

But while the neighbors did corroborate the officers’ testimony regarding a crowd of people,

none of the neighbors identified defendant as a person who pushed the officers. Finally, the



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State takes issue with the distances that defendant’s witnesses were from the events.   But where

witnesses were not close, they generally said that they had unobstructed views. Their distance

certainly did not render their testimony implausible. Thus, because the evidence was closely

balanced, the court plainly erred when it failed to inquire with prospective jurors whether they

both understood and accepted the Rule 431(b) principles.

¶ 33                                   III. CONCLUSION

¶ 34   The trial court plainly erred. Accordingly, the judgment of the circuit court of Stephenson

County is reversed, and the cause is remanded for a new trial.

¶ 35   Reversed and remanded.




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