                                No. 2—08—0889
                            Opinion filed March 8, 2011
______________________________________________________________________________

                                              IN THE

                               APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Du Page County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 07—CF—3086
                                       )
UDELL T. ROGERS,                       ) Honorable
                                       ) Robert J. Anderson,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE ZENOFF delivered the judgment of the court, with opinion.
       Justices McLaren and Hutchinson concurred in the judgment and opinion.

                                             OPINION

        Following a jury trial, defendant, Udell T. Rogers, was convicted of criminal sexual assault

of a family member under 18 years of age (720 ILCS 5/12—13(a)(3) (West 2008)). He was

sentenced to 10 years’ imprisonment. On appeal, defendant argues that the trial court committed

reversible error by failing to comply with Illinois Supreme Court Rule 431(b) (eff. May 1, 2007), in

that it did not ask each potential juror whether he or she understood and accepted each of the four

key principles of criminal trials. We initially affirmed on August 6, 2010. People v. Rogers, 403 Ill.

App. 3d 584 (2010). The Illinois Supreme Court issued a supervisory order on January 26, 2011,

directing us to vacate our August 6, 2010, judgment and reconsider our decision in light of People
No. 2—08—0889


v. Thompson, 238 Ill. 2d 598 (2010). People v. Rogers, No. 110557 (Jan. 26, 2011). We now

affirm.

                                             BACKGROUND

          On January 15, 2008, defendant was indicted on three counts of criminal sexual assault for

knowingly committing acts of sexual penetration with his minor stepdaughter, S.S. Count I alleged

that defendant placed his penis in the sex organ of S.S.; count II alleged that defendant placed his

mouth on the sex organ of S.S.; and count III alleged that defendant placed his penis in the mouth

of S.S.

          Following a jury trial, defendant was convicted of count I and acquitted of counts II and III.

The trial court denied defendant’s motion for a new trial and sentenced him to 10 years’ imprisonment

followed by a term of mandatory supervised release of 3 years to life. After the denial of his motion

to reconsider sentence, defendant timely appealed.

                                               ANALYSIS

          Defendant argues that he was denied his right to a fair and impartial jury as guaranteed by the

sixth and fourteenth amendments to the United States Constitution and article I, section 8, of the

Illinois Constitution, when the trial court failed to fully comply with the requirements of Rule 431(b).

Defendant acknowledges that he did not preserve this issue for appellate review, but urges us to

consider it under the plain-error doctrine. The State concedes that the trial court did not fully comply

with Rule 431(b), but maintains that defendant has not overcome his forfeiture, because he has not

established plain error.

          The plain-error doctrine is an exception to the general rule of forfeiture, and we invoke it only

when necessary to protect a defendant’s right to a fair, though not a perfect, trial and to protect the



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integrity of the judicial process. See People v. Herron, 215 Ill. 2d 167, 177 (2005). We may review

an otherwise forfeited issue when either (1) “the evidence in a case is so closely balanced that the

jury’s guilty verdict may have resulted from the error and not the evidence” or (2) “the error is so

serious that the defendant was denied a substantial right, and thus a fair trial.” Herron, 215 Ill. 2d

at 178-79. The defendant bears the burden of persuasion under both prongs. Herron, 215 Ill. 2d at

187. The threshold question in plain-error analysis is whether error occurred. Thompson, 238 Ill.

2d at 613.

        Defendant contends that error occurred when the trial court failed to comply with Rule

431(b). Rule 431 governs voir dire and was amended in 1997 to codify the decision in People v.

Zehr, 103 Ill. 2d 472 (1984), which held that “essential to the qualification of jurors in a criminal case

is that they 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. In its original form,

Rule 431(b) required a trial court to admonish and question prospective jurors on what are now

known as the Zehr principles only when requested by a defendant. Thompson, 238 Ill. 2d at 608.

Amended in 2007, Rule 431(b) now imposes an affirmative obligation on trial courts to do so.

People v. Lampley, 405 Ill. App. 3d 1, 9 (2010). In its entirety, the rule 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 the defendant’s failure



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       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 principles set out in this section.” Ill. S. Ct. R. 431(b) (eff.

       May 1, 2007).

Defendant argues that the trial court erred when it failed to ask 11 of the 12 empaneled jurors if they

understood any of the Zehr principles and failed to question 10 of them about Rule 431(b)(3)—that

defendant was not required to offer any evidence on his own behalf.

       Review of the record reveals that, in its opening remarks to the entire venire, the trial court

instructed all of the prospective jurors on each of the four Zehr principles. Thereafter, 12 prospective

jurors were called to the jury box for voir dire in 2 panels of 6 each. The trial court specifically

addressed the first panel with respect to Rules 431(b)(1), (b)(2), and (b)(4) by telling those potential

jurors that defendant was presumed to be not guilty, that the State had to prove defendant guilty by

proof beyond a reasonable doubt, that defendant did not have to testify, and that if defendant chose

not to testify the jurors could not hold it against him. The court also asked each member of the first

panel whether he or she had any “quarrel or disagreement” with any of those three principles. Each

member responded in the negative. Thereafter, the State questioned the first panel and asked to

excuse one member. The court then called “Juror A” from the venire and instructed him on all four

of the Zehr principles. The court inquired whether Juror A had any quarrel or disagreement with any

of those four principles; Juror A responded that he did not. The State accepted the first panel.

       Defendant questioned the members of the first panel and excused one member. The court

called “Juror B” from the venire. The court instructed Juror B on the presumption of innocence



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(Rule 431(b)(1)) and Juror B indicated that he had no quarrel or disagreement with it. Upon further

questioning by the court, Juror B replied that he understood that the State was required to prove

defendant’s guilt and that defendant did not have to prove his innocence, and he said that he had no

quarrel or disagreement with those principles. Juror B also indicated that he could follow the court’s

instruction to not hold it against defendant if he chose not to testify. Both parties accepted the first

panel.

         The trial court then questioned the second panel. Each member of the second panel indicated

that he or she had no quarrel or disagreement with the principles of Rules 431(b)(1) and (b)(2) and

would be able to follow Rule 431(b)(4). After questioning the second panel, the State accepted it.

After defendant questioned the second panel, he excused four of its members. The trial court then

called four more persons from the venire to sit with the second panel. These four prospective jurors

indicated that they had no quarrel with the principles of Rules 431(b)(1) and (b)(2) and that they

could follow Rule 431(b)(4). Thereafter, upon agreement of the parties, the court excused one of

the four new panel members. After calling, and ultimately excusing, three more members of the

venire, the court called “Juror C.” The court questioned Juror C as it had the majority of the

prospective jurors about Rules 431(b)(1), (b)(2), and (b)(4) and whether there was any reason he

could not be fair and impartial. After questioning Juror C, the State and defendant accepted the

second panel.

         This record establishes that the trial court failed to question all but Juror B about their

understanding (as opposed to acceptance) of the Zehr principles and all but Jurors A and B regarding

Rule 431(b)(3) (the principle that defendant need not present any evidence).1 As the State concedes,



         1
             The trial court expressly questioned Juror A on the Rule 431(b)(3) principle that defendant

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No. 2—08—0889


the trial court’s failure to fully comply with Rule 431(b) constituted error. See Thompson, 238 Ill.

2d at 612. We must now determine whether that error rises to the level of plain error.

        Defendant makes no argument that the evidence was closely balanced under the first prong

of the plain-error doctrine. Rather, he contends that, under the second prong, the trial court’s error

was so serious that it resulted in the denial of his substantial right to a fair and impartial jury and thus

requires reversal. At oral argument defendant clarified his position, arguing that any failure to fully

comply with Rule 431(b) constitutes structural error, which is automatically reversible.

        Automatic reversal is required in a limited category of cases—where structural error occurs.

Thompson, 238 Ill. 2d at 608. Structural error is deemed to have occurred “only if it necessarily

renders a criminal trial fundamentally unfair or an unreliable means of determining guilt or innocence.”

Thompson, 238 Ill. 2d at 609. “Those cases include a complete denial of counsel, trial before a biased

judge, racial discrimination in the selection of a grand jury, denial of self-representation at trial, denial

of a public trial, and a defective reasonable doubt instruction.” Thompson, 238 Ill. 2d at 609. In

Thompson, our supreme court noted that a violation of Rule 431(b) implicates neither a fundamental

right nor a constitutional protection. Thompson, 238 Ill. 2d at 609. The court explained, “While trial

before a biased jury is structural error subject to automatic reversal, failure to comply with Rule

431(b) does not necessarily result in a biased jury. Rule 431(b) questioning is simply one way of

helping to ensure a fair and impartial jury.” Thompson, 238 Ill. 2d at 610-11. Because a trial court’s

failure to fully comply with Rule 431(b) does not inevitably result in a biased jury, the trial is not

necessarily rendered fundamentally unfair or unreliable in determining guilt or innocence, and the



need not present any evidence. The court questioned Juror B regarding his acceptance and

understanding of the fact that defendant did not “have to prove [his] innocence.”

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No. 2—08—0889


error does not fall into the limited category of structural errors requiring automatic reversal.

Thompson, 238 Ill. 2d at 611. Accordingly, we reject defendant’s argument here that automatic

reversal is required.

        Under the second prong of plain-error analysis, prejudice is presumed, regardless of how

strong the evidence was, because of the importance of the right involved. Herron, 215 Ill. 2d at 187.

However, the defendant bears the burden of demonstrating that the error was so serious that it

affected the fairness of his trial and challenged the integrity of the judicial process. Thompson, 238

Ill. 2d at 613. Although the purpose of Rule 431(b) questioning is to help ensure an impartial jury,

it is not the only means to do so, and it is therefore not indispensable to a fair trial. Thompson, 238

Ill. 2d at 614. Thus, “[w]e cannot presume the jury was biased simply because the trial court erred

in conducting the Rule 431(b) questioning.” Thompson, 238 Ill. 2d at 614. Therefore, in order to

meet the burden of persuasion, a defendant alleging second-prong plain error for a Rule 431(b)

violation must show that the violation resulted in a biased jury. Thompson, 238 Ill. 2d at 614-15.

        Here, the trial court failed to comply with Rule 431(b) in two respects. Defendant makes no

argument that the court’s failure to question the majority of the jurors about their understanding, as

opposed to acceptance, of the Zehr principles resulted in a biased jury. Defendant does argue that

the court’s failure to question the majority of the jurors about the principle that he was not required

to present any evidence “may” have harmed him, despite the fact that he did present evidence—both

he and his wife testified. He specifically asserts that, because the jurors were not questioned about

the fact that he was not required to present evidence, they might have thought that he was required

to present physical evidence or something other than testimony. According to defendant, this was

especially true since the State presented numerous exhibits and four expert witnesses.



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        Defendant’s argument is speculative and belied by the record. In addressing the venire, the

trial court explained, “[Defendant] doesn’t have to say anything, do anything, or prove anything at

this trial.” After explaining and reading the indictment, the trial court instructed the venire as to how

the process of the trial would unfold. The court then stated:

                “[Defendant], as I told you, does not have to present any evidence. He doesn’t have

        to prove anything here. The State has to prove his guilt and they have got to do that by proof

        beyond a reasonable doubt.

                Right now he is presumed to be not guilty. The State has to prove him guilty, if they

        are capable of doing so, by proof beyond a reasonable doubt. So [defendant] doesn’t have

        to put on any evidence of any kind.” (Emphasis added.)

The court then addressed the principle of Rule 431(b)(4), that defendant was not required to testify

and that if he chose not to testify it could not be held against him. The court went on to instruct the

venire on the different types of evidence:

                “In any event, evidence is presented during the course of the trial in several different

        ways. Most commonly, it’s from testimony from the witness stand. Occasionally, there are

        what are called stipulations where the parties agree that something is evidence. ***

                And, finally, sometimes exhibits that are introduced into evidence during the course

        of the trial.”

        The jury was clearly instructed that defendant did not need to do anything; that there are

different types of evidence, with testimony being the most common; and that defendant did not need

to present evidence of any kind. On this record, despite the trial court’s failure to question the

prospective jurors on the principle that defendant was not required to present evidence, defendant



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has not demonstrated that the jury was likely to believe that he was required to present evidence other

than testimony, let alone demonstrated that the jury was biased.

       As defendant bears the burden of persuasion under the plain-error doctrine, his failure to

present any evidence of a biased jury prevents the second prong of the plain-error doctrine from

serving as a basis for excusing defendant’s forfeiture of this issue. Thompson, 238 Ill. 2d at 615

(where the defendant failed to present any evidence of a biased jury, he failed to meet his burden

under the second prong of the plain-error doctrine, and the court would not review the error).

       We also note that nothing in the record suggests that the jury was biased. The trial court

instructed the jury at the close of trial and before its deliberations began that defendant was not

required to prove his innocence. Such instruction may ameliorate any potential unfairness resulting

from the error. See People v. Glasper, 234 Ill. 2d 173, 201 (2009) (holding no evidence of jury bias

was shown, especially where jury was both admonished and instructed). Moreover, the jury acquitted

defendant of two of the three offenses for which he was tried. Had the jury been biased, this result

would have been unlikely.

       For the reasons given, we affirm the judgment of the circuit court of Du Page County.

       Affirmed.




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