                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Turman, 2011 IL App (1st) 091019




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    DONNELL TURMAN, Defendant-Appellant.



District & No.             First District, Second Division
                           Docket No. 1-09-1019


Filed                      June 30, 2011


Held                       Defendant’s conviction for criminal sexual assault arising from an
(Note: This syllabus       incident that occurred after he assisted in taking the intoxicated victim
constitutes no part of     from a party to her apartment was reversed and the cause was remanded
the opinion of the court   for a new trial, since plain error occurred when the instruction that the
but has been prepared      term “reasonable doubt” was for the jury to define allowed the jury to use
by the Reporter of         a standard that likely would be below the threshold of the reasonable
Decisions for the          doubt standard, and, furthermore, the failure to instruct the jury that it
convenience of the         could consider whether defendant made prior inconsistent statements to
reader.)
                           the police was error where defendant denied that his statement to the
                           police was reread to him and the police statement used words, including
                           “inebriated,” that he claimed he would not have used or understood.


Decision Under             Appeal from the Circuit Court of Cook County, No. 07-CR-5693; the
Review                     Hon. Mary Margaret Brosnahan, Judge, presiding.



Judgment                   Reversed and remanded for a new trial.
Counsel on                  Michael J. Pelletier, Alan D. Goldberg, and Jonathan Yeasting, all of
Appeal                      State Appellate Defender’s Office, of Chicago, for appellant.

                            Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and
                            Jon Walters, Assistant State’s Attorneys, of counsel), for the People.


Panel                       PRESIDING JUSTICE CUNNINGHAM delivered the judgment of the
                            court, with opinion.
                            Justices Connors and Harris concurred in the judgment and opinion.



                                              OPINION

¶1          In April 2009 the defendant, Donnell Turman, was convicted by a jury in the circuit court
        of Cook County of the Class 1 felony offense of criminal sexual assault. This offense
        required a finding that, while committing an act of sexual penetration, the defendant knew
        that the victim was unable to give knowing consent. 720 ILCS 5/12–13(a)(2) (West 2008).
        The trial court sentenced the defendant to five years of imprisonment. 730 ILCS
        5/5–8–1(a)(4) (West 2008). The written sentencing order is devoid of any mention of a
        period of mandatory supervised release (MSR). The defendant filed a timely appeal of his
        conviction and sentence.
¶2          On appeal, the defendant raises the following issues: (1) whether the trial court violated
        his right to due process and a fair trial when it instructed the jurors that the term “reasonable
        doubt” was for them to define; (2) whether his right to a fair trial was denied because the trial
        court failed to instruct the jury that it could consider whether or not the defendant made prior
        inconsistent statements to the police; (3) whether the State failed to prove beyond a
        reasonable doubt that the defendant knew the victim could not give knowing consent to sex;
        (4) whether the trial court abused its discretion because it did not allow defense counsel to
        disclose to the jury, either in defense counsel’s opening statement or during trial, the
        statements that the defendant made to police until after the State had introduced the
        statements into evidence; (5) whether the defendant is entitled to a new trial because the trial
        court violated Illinois Supreme Court Rule 431(b) (Ill. S. Ct. R. 431(b) (eff. May 1, 2007));
        and (6) whether the cause should be remanded to allow the trial court to impose a definite
        term of MSR.
¶3          For the following reasons, we reverse the defendant’s conviction and remand the case to
        the trial court for a new trial.

¶4                                      BACKGROUND
¶5          The testimony at trial showed that on February 2, 2007, at approximately 11 or 11:30


                                                  -2-
     p.m., the 17-year-old defendant and his 20-year-old brother, Jamol Turman (Jamol), arrived
     at a party in downtown Chicago. The victim, B.W., was 19 years old and also attended the
     party with David Nelson (Nelson), her friend and college classmate. Letasha Drake (Drake)
     testified for the State as follows. At the party she observed B.W. “drinking a lot, a lot of
     vodka, excessively.” Drake and the victim were drinking straight vodka in eight-ounce cups.
     At one point during the party, Drake entered the bathroom and found B.W. passed out and
     lying across the toilet. Drake asked for help removing B.W. from the toilet. The defendant
     and Drake picked B.W. up and placed her in the bathtub. Drake described B.W. as being
     “lethargic. Her mouth was wide open. Her eyes were rolling back. She was moaning, making
     really disturbing noises.” After leaving the bathroom, Drake returned to the party and asked
     if anyone would help B.W. The defendant answered affirmatively and went into the
     bathroom and closed the door. Drake saw B.W. approximately one hour later and B.W.’s
     eyes were “still kind of rolled back. All you could see was the white in her eyes.” Drake
     stated during cross-examination that B.W. was drinking voluntarily and that she never saw
     her being forced to drink.
¶6       David Nelson testified for the State as follows. B.W. was very drunk at the party. He and
     the defendant helped B.W. to the bathroom, where he witnessed her vomiting. Nelson
     brought B.W. water and she vomited it up. The defendant stayed in the bathroom to help
     B.W., and then later Nelson saw B.W. “[p]assed out. She was just like her eyes were closed.
     She was sitting there. She would moan and that’s really it.”
¶7       Nelson left the party between 2 a.m. and 3 a.m. with the defendant, Jamol and B.W. in
     Jamol’s car. Jamol drove to the apartment building where Nelson and B.W. lived. The
     defendant was in the backseat with B.W., who “started shaking like seizurely [sic] shaking
     and spitting up and moaning.” The defendant’s reaction to B.W.’s behavior was “[h]oly crap,
     what’s going on.” The defendant “did most of the carrying this time to take [B.W.] upstairs”
     to her apartment. Nelson stated he used his own key card to enter the building and reached
     into B.W.’s purse to get her apartment key.
¶8       Once they were in B.W.’s apartment, the defendant and Nelson placed B.W. on her bed.
     Nelson described B.W. as “passed out.” Nelson and Jamol left the building and later returned
     to Nelson’s apartment. At approximately 5 a.m., Nelson was awakened by Jamol and they
     went to B.W.’s apartment. B.W. was “flat out cold, out cold.” The defendant and B.W. were
     in B.W.’s bed, and the defendant’s head was near B.W.’s feet, with his feet near B.W.’s
     head.
¶9       Nelson did not see B.W. again until approximately 4 to 5 p.m. that same day. B.W.
     showed Nelson a note that the defendant had left in her bra. The note contained the
     defendant’s phone number asking B.W. to call him. The note also contained the following:
              “What up baby, this is D-money AKA Donnell Jamol brother. OK even though you
              have a boyfriend thats cool, well my fault your getting married soon. but anyway
              even though you were drunk thats the reason you were acting the way you were
              acting I mean I actually had to pick you up and put you in my car and take you home
              and someone had to stay with you especially the way you were spitting up on the way
              home and when we first got here don’t get me wrong it was just the alcohol but don’t


                                              -3-
               trip we were both drunk as hell we both still had some very interesting sex and to be
               honest you kept on asking me but I kept saying no but you kept saying yes but for the
               record it was just the alcohol but the only thing is we both would have to keep our
               mouths closed.
               P.S I still would like to talk to you on the low key excuse the hand writing Thank you
               for the Best night of D-moneys life.”
       Nelson took B.W. to the hospital, where she was examined and a sexual assault evidence
       collection kit was prepared.
¶ 10       The record discloses that the emergency room nurse found that B.W. had some
       tenderness in the upper part of her chest and a bruise on her left lateral thigh. A forensic
       scientist testified at trial that the vaginal and rectal swabs obtained from B.W. contained the
       DNA profiles of both B.W. and the defendant.
¶ 11       The defendant was arrested at approximately noon on February 19, 2007. Assistant
       State’s Attorney Meg O’Sullivan spoke with the defendant at police headquarters. She
       memorialized the conversation in a written statement taken at 4 a.m. on February 20.
       O’Sullivan reviewed the same statement with the defendant and he signed each page. The
       defendant’s name, as well as other names, is misspelled several times in the document.
¶ 12       The defendant’s written statement can be summarized as follows. When the defendant
       met B.W. at the party she was already drunk and she became more intoxicated while drinking
       vodka. B.W. began to vomit in the bathroom and he and Nelson placed B.W. in the bathtub.
       The defendant helped move B.W. onto the couch where she passed out. The defendant and
       Nelson carried B.W. to the car and the defendant drove to B.W.’s apartment building. Nelson
       asked the defendant to stay with B.W. because of her condition and told the defendant not
       to have sex with her. The defendant drank some cognac and then fell asleep on B.W.’s
       roommate’s bed. While acting like a zombie, B.W. took off her pants and top and climbed
       on top of him. The defendant put a condom on and had vaginal sex with her. B.W. did not
       talk and only moaned during the sexual act. The defendant wrote a note to her to explain why
       they had sexual relations and placed it in her bra while she slept. When Jamol and Nelson
       arrived at approximately 7 a.m., they saw B.W. asleep and passed out on her bed. The
       statement at the police station contained the following: “[The defendant] states while having
       sex with [B.W.], he knew she was so intoxicated and was zombie-like, completely out of it
       from drinking so much alcohol.”
¶ 13       At trial the defendant denied making many of the handwritten statements. He stated that
       while he was asleep in B.W.’s roommate’s bed, B.W., fully clothed, woke him up and said,
       “fuck me like you never fucked a girl before.” The defendant “brushed it off” and went back
       to sleep, but B.W. woke him again. She was wearing only a thong and a bra. She straddled
       him and committed an oral sexual act on him. The defendant testified that he “gave in” and
       had vaginal sex with B.W. for approximately 40 minutes until they fell asleep. He denied
       having anal sex with her. After Jamol woke the defendant some hours later, B.W. went into
       the bathroom. When she came out, B.W. gave the defendant a hug and kiss and told the
       defendant to call her. The defendant said that he wrote the note “during the time in between
       after we went to sleep.”


                                                -4-
¶ 14       A police detective who spoke to B.W. on February 3, 2007, testified at trial that B.W.
       told him that she did not remember anything about the assault. Another detective who
       interviewed B.W. on February 19 testified that B.W. told her she had passed out from
       drinking and did not remember any sexual acts with the defendant. B.W. testified at trial that
       her answers to the nurse’s questions at the hospital were not from her recollection of the
       events, but were based on the note that the defendant left her.
¶ 15       At trial B.W. testified that while the defendant was in the apartment alone with her, she
       woke up with him on top of her. B.W. claimed that she tried to push the defendant off and
       that she told him “no.” B.W. stated that she had “[p]eriods of blacking out, coming in and
       out” “[a]nd I was laying on my bed and he was forceful. He was trying to have sex with me,
       on top of me.”
¶ 16       The jury found the defendant guilty of the offense of criminal sexual assault and the trial
       court imposed a sentence of five years of imprisonment. The defendant filed a timely appeal
       from his conviction and sentence.

¶ 17                                          ANALYSIS
¶ 18        The first issue that we review is whether the trial court violated the defendant’s right to
       due process and a fair trial when it instructed the jurors that the term “reasonable doubt” was
       for them to define. Generally, an issue concerning the propriety of a jury instruction is
       reviewed under an abuse of discretion standard; however, our review is de novo when the
       issue is whether the applicable law was correctly conveyed by the jury instruction. Barth v.
       State Farm Fire & Casualty Co., 228 Ill. 2d 163, 170, 886 N.E.2d 976, 980 (2008).
¶ 19        In this case, the jurors had been deliberating for several hours when they asked for a
       “more explicit, expansive definition of reasonable doubt.” Defense counsel proposed that the
       jury be told that “reasonable doubt is not specifically defined under Illinois law. It is not any
       doubt, only that which is reasonable.” The trial court then proposed the following:
       “reasonable doubt is not defined under Illinois law. It is for the jury to collectively determine
       what reasonable doubt is.” The parties agreed to this explanation. The defendant did not
       include this issue in his posttrial motion. A defendant must object at trial to the alleged error
       and include it in his written posttrial motion or the issue is forfeited for appellate review.
       People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130 (1988).
¶ 20        The defendant urges us to consider the issue under the plain error doctrine that allows
       review of unpreserved issues when: (1) a clear or obvious error, regardless of the seriousness
       of the error, occurred where the evidence was so closely balanced that the error alone
       threatened to tip the scales of justice against the defendant; or (2) the clear or obvious error
       was so serious 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. Piatkowski, 225
       Ill. 2d 551, 565, 870 N.E.2d 403, 410-11 (2007); People v. Herron, 215 Ill. 2d 167, 178-79,
       830 N.E.2d 467, 475 (2005). The defendant in this case claims that this unpreserved issue
       should be examined under the plain error rule because both prongs of the doctrine are
       applicable to his case. We believe there is merit to the defendant’s argument that the
       evidence in this case was closely balanced. The first step in the process is to determine

                                                 -5-
       whether error occurred. Piatkowski, 225 Ill. 2d at 565, 870 N.E.2d at 411.
¶ 21        The defendant claims that the explanation given by the trial court to the jury was against
       the long-standing rule in Illinois that the term “reasonable doubt” is self-defining and needs
       no further elaboration. People v. Cagle, 41 Ill. 2d 528, 536, 244 N.E.2d 200, 2004 (1969).
       The defendant goes on to argue that “empirical evidence strongly suggests that without a firm
       instruction, a criminal jury left to its own accord is prone to adopt a mere preponderance
       standard.”
¶ 22        The defendant contends that this is structural error because it does not yield a real jury
       verdict within the meaning of the sixth amendment. See Sullivan v. Louisiana, 508 U.S. 275,
       281-82 (1993). The defendant points out that the due process clause of the United States
       Constitution “protects the accused against conviction except upon proof beyond a reasonable
       doubt of every fact necessary to constitute the crime with which he is charged.” In re
       Winship, 397 U.S. 358, 364 (1970). He alleges that because of the trial court’s error, there
       is a “reasonable likelihood that the jury understood the instructions to allow conviction based
       on proof insufficient to meet the Winship standard.” Victor v. Nebraska, 511 U.S. 1, 6
       (1994).
¶ 23        The State agrees that the words “reasonable doubt” are self-defining and no better
       definition exists than the words themselves. People v. Wielgos, 220 Ill. App. 3d 812, 820,
       581 N.E.2d 298, 304 (1991); People v. Hughes, 167 Ill. App. 3d 265, 267, 521 N.E.2d 240,
       242 (1988). The State maintains that the defendant cannot raise the issue of an improper jury
       instruction on appeal when it is the instruction that he offered and agreed to. People v.
       Patrick, 233 Ill. 2d 62, 77, 908 N.E.2d 1, 9-10 (2009). The State argues that if this court does
       decide to address the issue, that no error, much less plain error, occurred.
¶ 24        The defendant relies upon the case of United States v. Hernandez for support of his
       argument that the trial court erred in responding to the jury’s question regarding reasonable
       doubt. United States v. Hernandez, 176 F.3d 719 (3d Cir. 1999). The State argues that the
       Hernandez case is clearly distinguishable because the trial court in that case instructed the
       jury that reasonable doubt was “ ‘what you in your own heart and your own soul and your
       own spirit and your own judgment determine is proof beyond a reasonable doubt.’ ”
       (Emphasis in original.) Id. at 729. The federal Court of Appeals for the Third Circuit
       reversed the defendant’s conviction because “a juror may well have concluded that a ‘gut
       feeling’ as to the defendant’s guilt was adequate to convict so long as that feeling was
       supported by a preponderance of the evidence (or even less).” Id. at 732.
¶ 25        We agree that the jury instruction given in the Hernandez case is distinguishable from
       the instruction given in this case. However, we conclude that the trial court in this case erred
       when it gave its explanation of reasonable doubt to the jury. By instructing the jurors that
       they should collectively determine what reasonable doubt was, the court allowed the jury to
       use a standard that in all likelihood was below the threshold of a reasonable doubt standard.
       The response offered by defense counsel that “[i]t is not any doubt, only that which is
       reasonable,” would have been more appropriate than the explanation that was given by the
       trial court. The best response for the trial court to have made would have been to refuse to
       give the jury an additional explanation. See People v. Failor, 271 Ill. App. 3d 968, 970, 649


                                                 -6-
       N.E.2d 1342, 1343 (1995) (where the appellate court emphasized that the Illinois Supreme
       Court has consistently held that neither the trial court nor counsel should define the term; the
       fact that the pattern instruction does not include a definition for reasonable doubt indicates
       that none should be given). The effort by the trial court in this case can be construed as an
       attempt to define that which the Illinois Supreme Court has said cannot be defined in this
       way.
¶ 26        We also note that it has been held that the principle that a jury is entitled to have answers
       to its legal questions does not include a request to have reasonable doubt defined. People v.
       Vasquez, 368 Ill. App. 3d 241, 254-55, 856 N.E.2d 523, 536 (2006).
¶ 27        In this case where the jury had the difficult task of deciding whether the 17-year-old
       defendant knew that B.W. was unable to give consent to the sexual acts, it is critical that the
       jury understood what standard of proof it was to utilize. The explanation which the trial court
       provided did not clarify the meaning of reasonable doubt, especially in light of the facts of
       this case. We hold that the trial court’s error regarding its explanation to the jury of the
       meaning of reasonable doubt was plain error under both the first and second prongs of the
       plain error rule. Under the first prong, because of the closeness of the evidence in this case,
       the clear error threatened to tip the scales of justice against the defendant. The jury may have
       used a lesser standard of doubt than reasonable doubt since they were to collectively
       determine what the term meant. Similarly, under the second prong, this error was so serious
       that it affected the fairness of the defendant’s trial and his right to due process, thereby
       challenging the integrity of the judicial process. See Piatkowski, 225 Ill. 2d at 565, 870
       N.E.2d at 410-11.
¶ 28        The next issue raised by the defendant is that the trial court failed to instruct the jury that
       they may consider whether or not he made the attributed statements to the police and
       assistant state’s attorney on February 20, 2007. At trial, the defendant denied making many
       of the statements contained in the handwritten document that he signed at the police station.
       The trial court gave the following instruction, which did not include the bracketed optional
       language:
                     “You have before you evidence that the defendant made a statement relating to
                the offense charged in the indictment. It is for you to determine [whether the
                defendant made the statement[s], and, if so,] what weight should be given to the
                statement. In determining the weight to be given to a statement, you should consider
                all of the circumstances under which it was made.” (Emphasis added.) Illinois Pattern
                Jury Instructions, Criminal, No. 3.06–3.07 (4th ed. 2000) (IPI Criminal 4th No.
                3.06–3.07).
¶ 29        The defendant argues that the bracketed portion, “whether the defendant made the
       statement[s]” should be deleted only when a defendant admits making all of the material
       statements attributed to him. IPI Criminal 4th No. 3.06–3.07, Committee Notes, at 91;
       People v. Echols, 382 Ill. App. 3d 309, 315-16, 887 N.E.2d 793, 799 (2008).
¶ 30        In this case, the defendant denied that Assistant State’s Attorney O’Sullivan reread the
       police statement to him even though his signature appears on every page. He argues that
       among other inaccuracies in the statement, he denies he used the word “inebriated” to


                                                   -7-
       describe B.W. and points out that he would not have used such a word because he did not
       know the definition of the word. That denial has a ring of credibility when considered against
       the language and grammar used by the defendant in the note that he wrote to B.W. He also
       denied carrying B.W. to the car and claimed that he only assisted her to the car. He also
       denied that B.W. was “totally out of it where she couldn’t, she wasn’t responding or couldn’t
       walk” when they went to the car. Significantly, he likewise denied that when he was
       questioned by police and the assistant State’s Attorney, he described B.W. as being “zombie-
       like” during the sexual encounter. The defendant claims that the inappropriate jury
       instruction foreclosed the jury from considering whether he made only portions of the
       statements attributed to him.
¶ 31        The defendant claims that his counsel objected to this jury instruction on this issue.
       However, the record reveals that defense counsel objected to a different jury instruction that
       the defendant is not challenging on appeal and there was no objection to the jury instruction
       that is an issue on appeal. The State contends that because the defendant did not object to this
       specific jury instruction at trial, nor did he include the issue in his posttrial motion, he has
       forfeited the issue. We agree. In order to determine the applicability of the plain error
       doctrine, we will determine first, if error was committed by the trial court. We can then
       determine whether review of the error is appropriate under the plain error rule. Herron, 215
       Ill. 2d at 178-79, 830 N.E.2d at 410-11. We will utilize a de novo standard when examining
       jury instructions as a whole to determine if the jury was comprehensively apprised of the
       relevant, appropriate, legal principles. People v. Parker, 223 Ill. 2d 494, 501, 861 N.E.2d
       936, 939 (2006).
¶ 32        The State points out that the jury was also told the following as part of the instruction on
       prior inconsistent statements of a witness:
                     “It is for you to determine whether the witness made the earlier [inconsistent]
                statement and, if so, what weight should be given to that statement. In determining
                the weight to be given to an earlier statement, you should consider all of the
                circumstances under which it was made.” (Emphasis added.) Illinois Pattern Jury
                Instructions, Criminal, No. 3.11 (4th ed. 2000) (IPI Criminal 4th No. 3.11).
       The State argues that the italicized language is virtually identical to the bracketed language
       that the trial court did not include in IPI Criminal 4th No. 3.06–3.07. The State contends that
       the instructions, taken in their totality, properly instructed the jury as to the law to be applied
       in this case. Therefore, any error that may have been committed by the trial court was
       harmless and was cured when the jury was instructed on the weight to be given prior
       inconsistent statements pursuant to IPI Criminal 4th No. 3.11.
¶ 33        The defendant makes a credible argument that it is unclear which instruction the jury
       chose to follow. He argues that this was highly prejudicial to him because the statements
       allegedly made at the police station were central to the State’s case and were the focal point
       of its rebuttal closing argument. The defendant argues in summary that since he denied
       making the statements, the jury was not properly instructed regarding the weight to be given
       to the statements.
¶ 34        We agree with the defendant that the trial court should have included the bracketed


                                                  -8-
       portion of IPI Criminal 4th No. 3.06–3.07. Failure by the trial court to do so amounted to
       error under both prongs of the plain error doctrine. As stated previously, the evidence in this
       case was closely balanced. We find that this error threatened to tip the scales of justice away
       from the defendant. We believe that it was important to give the instruction in question and
       failure to do so deprived the defendant of a fair trial and impacted the integrity of the judicial
       process, satisfying the second prong of the plain error doctrine. The defendant’s statements
       made at the police station were, as the defendant argues, central to the State’s case.
       Therefore, proper jury instructions related to those statements were imperative. Contrary to
       the State’s contention, the jury instruction regarding prior inconsistent statements did not
       cure the error.
¶ 35       We hold that the two errors, which we have determined constituted plain errors, were
       sufficiently serious as to require a reversal of the defendant’s conviction and sentence.
       Accordingly, we need not address the defendant’s remaining issues.
¶ 36       For the reasons discussed, we reverse the defendant’s conviction and sentence and
       remand the case to the trial court for a new trial. We note that for purposes of double
       jeopardy analysis, if the evidence had been presented in a manner free from the errors
       discussed, there was sufficient evidence to convict the defendant of the offense charged. See
       People v. Baines, 399 Ill. App. 3d 881, 900, 927 N.E.2d 158, 173 (2010).
¶ 37       Reversed and remanded for a new trial.




                                                  -9-
