                             ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                           People v. Fountain, 2011 IL App (1st) 083459-B




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



District & No.               First District, Sixth Division
                             Docket No. 1-08-3459


Filed                        December 23, 2011


Held                         Defendant was properly found guilty of unlawful possession of 1.3 grams
(Note: This syllabus         of a controlled substance with intent to deliver, regardless of his claim
constitutes no part of       that the weight element was not proved beyond a reasonable doubt due
the opinion of the court     to the forensic chemist’s failure to testify that each of the packets taken
but has been prepared        from defendant was individually weighed, and, furthermore, although the
by the Reporter of           appellate court rejected defendant’s contention that Supreme Court Rule
Decisions for the            431(b) imposes a sua sponte duty on the trial court obviating the need for
convenience of the           an objection to preserve an alleged error, the court also disagreed with
reader.)
                             defendant’s argument that the trial judge’s inquiry as to whether the
                             jurors had a “problem” or “disagreed” with the Zehr principles rather than
                             understood and accepted them amounted to a failure to comply with Rule
                             431(b), but the DNA fee imposed on defendant was vacated on the
                             ground that the fee was assessed in an earlier conviction.


Decision Under               Appeal from the Circuit Court of Cook County, No. 07-CR-15592; the
Review                       Hon. John T. Doody, Jr., Judge, presiding.


Judgment                     Affirmed in part and vacated in part.
Counsel on                 Michael J. Pelletier, Patricia Unsinn, Alan D. Goldberg, and Emily S.
Appeal                     Wood, all of State Appellate Defender’s Office, of Chicago, for appellant.

                           Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Amy
                           Watrobakern, and Martin Syvertsen, Assistant State’s Attorneys, of
                           counsel), for the People.


Panel                      JUSTICE GARCIA delivered the judgment of the court, with opinion.
                           Presiding Justice R. Gordon and Justice McBride concurred in the
                           judgment and opinion.



                                              OPINION

¶1          Following a guilty verdict by a jury, the defendant Bobby Fountain was sentenced to four
        years’ imprisonment for Class 1 possession with intent to deliver 1.3 grams of a substance
        containing heroin. On February 11, 2011, we issued an opinion affirming the defendant’s
        conviction against three claims: (1) the State failed to prove the weight element of the
        charged offense beyond a reasonable doubt because the forensic chemist did not expressly
        testify to having individually tested each of the foil packets containing the suspected heroin
        to meet the one-gram threshold; (2) the circuit court judge failed to comply with Supreme
        Court Rule 431(b) (Ill. S. Ct. R. 431(b) (eff. May 1, 2007)); and (3) the defendant was
        improperly assessed the DNA fee. The Illinois Supreme Court directed that we vacate our
        opinion and reconsider in light of People v. Marshall, 242 Ill. 2d 285 (2011). In Marshall,
        our supreme court ruled the DNA fee statute permits a DNA analysis fee only “where that
        defendant is not currently registered in the DNA database.” Id. at 303. The court reversed
        “the appellate court’s judgment, and vacate[d] that portion of the trial court’s order requiring
        defendant to submit an additional DNA sample and requiring him to pay the $200 DNA
        analysis fee.” Id. Upon reconsideration, we affirm the defendant’s conviction, but vacate the
        DNA fee.

¶2                                       BACKGROUND
¶3          On June 26, 2007, the defendant was arrested and charged with possession of at least 1
        but less than 15 grams of a substance containing heroin with intent to deliver (720 ILCS
        570/401(c) (West 2008)), and a cocaine-related offense, the conviction of which he does not
        challenge. At the defendant’s jury trial, the following material evidence to this appeal was
        introduced.
¶4          Officer Keith Karczewski of the Chicago police department testified that on June 26,
        2007, he was conducting a narcotics mission with his partners John Dolan and Thomas
        Harris. At 12:30 p.m., he was driving a covert van in the area of 4231 West Madison in

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       Chicago when he saw the defendant on the sidewalk yelling “rocks, blows, rocks, blows.”
       Based on his experience, Officer Karczewski understood “rocks” to mean crack cocaine and
       “blows” to mean heroin. Officer Karczewski parked the van on the opposite side of the street
       across four lanes of traffic, and observed the defendant for approximately 15 minutes. During
       his surveillance, Officer Karczewski observed a similar event on three separate occasions:
       a man would approach the defendant, engage in a brief conversation, and exchange United
       States currency for a small item the defendant retrieved from a plastic bag in his front right
       pocket. Because he believed the defendant had engaged in narcotics transactions, Officer
       Karczewski instructed Officers Dolan and Harris to approach the defendant.
¶5         Officer John Dolan testified that when he and Officer Harris approached, the defendant
       volunteered that he “had a jab of blows and a couple of rocks” in his right front pocket,
       which he was selling “for a cat named Furley.” Officer Dolan reached into the defendant’s
       right front pocket and retrieved a large plastic bag. Inside the large bag was a smaller bag
       holding nine foil packets Officer Dolan believed to be heroin, as well as two smaller bags
       Dolan believed to be crack cocaine. Officer Dolan also recovered $180 from the defendant’s
       right front pocket. Officer Dolan testified that he maintained constant care and control over
       the items until he transferred custody of the items to Officer Karczewski at the police station.
¶6         Officer Karczewski inventoried the cocaine, heroin, and currency under separate, unique
       inventory numbers. He placed each inventoried item into a larger evidence bag, heat-sealed
       the bag, and placed it into a safe until the bag was transported to the crime lab.
¶7         Linda Rayford, a forensic chemist with the Illinois State Police, duly qualified as an
       expert, testified she received the heat-sealed evidence bag on July 3, 2007. She opened the
       evidence bag and removed the smaller bag containing nine foil packets of suspected heroin.
       Chemist Rayford testified she weighed the nine packets separately and determined the
       powder weighed 1.3 grams. She then conducted a preliminary color test and a confirmatory
       test, both of which indicated the presence of heroin. Chemist Rayford opined the nine foil
       packets contained 1.3 grams of heroin.
¶8         The defendant testified that on June 26, 2007, he worked as a temporary employee at
       Pennant’s Bakery until 5 a.m., then walked home and took a nap. When he awoke, the
       defendant walked to the Family Dollar store on the 4200 block of west Madison to shop. He
       then walked to a nearby barbershop to get his hair cut, but the shop was closed. As he waited
       for the shop to open, he spoke to a man outside the shop. The defendant testified he never
       exchanged items with anyone on the street, and never yelled “rocks” or “blows.” He also
       denied telling Officer Dolan that he was selling drugs “for a cat named Furley.”
¶9         The jury found the defendant guilty of possession with intent to deliver at least 1 but less
       than 15 grams of a substance containing heroin. The trial judge sentenced the defendant to
       four years’ imprisonment. The defendant was also ordered to pay certain fines and fees,
       including a $200 DNA fee pursuant to section 5-4-3 of the Unified Code of Corrections (730
       ILCS 5/5-4-3 (West 2008)). This appeal followed.

¶ 10                                      ANALYSIS
¶ 11      The defendant initially contends reasonable doubt remains that he actually possessed 1.3

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       grams of heroin because the forensic chemist was never questioned regarding the exact
       testing procedures she followed. In the absence of explicit testimony from the chemist that
       she actually tested each of the nine foil packets of powder recovered from the defendant’s
       pocket, he contends his conviction must be reduced to possession of less than one gram of
       heroin with intent to deliver, a Class 2 felony. See 720 ILCS 570/401(d) (West 2008).

¶ 12                                  Sufficiency of Evidence
¶ 13       When confronted with a challenge to the sufficiency of the evidence, a reviewing court
       does not retry the defendant; rather, it determines whether “any rational trier of fact could
       have found the essential elements of the crime beyond a reasonable doubt.” (Internal
       quotation marks omitted.) (Emphasis in original.) People v. Ross, 229 Ill. 2d 255, 272 (2008)
       (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This standard reflects that it is the
       jury’s province to determine the credibility of witnesses, assign weight to their testimony,
       and resolve conflicts in the evidence. Ross, 229 Ill. 2d at 272. To overturn a conviction, the
       evidence must be so improbable or unsatisfactory that reasonable doubt of the defendant’s
       guilt remains. Ross, 229 Ill. 2d at 272. Reasonable doubt exists as a matter of law when the
       State fails to prove an essential element of the offense. “When a defendant is charged with
       possession of a specific amount of an illegal drug with intent to deliver and there is a lesser
       included offense of possession of a smaller amount, then the weight of the seized drug is an
       essential element of the crime and must be proved beyond a reasonable doubt.” People v.
       Jones, 174 Ill. 2d 427, 428-29 (1996).
¶ 14       When suspected illegal drugs are seized in the form of powder in separate packets, a
       sufficient number of the seized packets must be tested to establish that the defendant
       possessed the requisite amount of the illegal drug to prove the weight element beyond a
       reasonable doubt. Jones, 174 Ill. 2d at 429 (“a portion from each container or sample must
       be tested in order to determine the contents of each container or sample”); cf. People v.
       Clinton, 397 Ill. App. 3d 215, 223 (2009) (chemist improperly “combined six packets of
       suspected heroin before determining whether each of the packets did, in fact, contain heroin”
       (emphasis added)). In other words, the trier of fact may not infer beyond a reasonable doubt
       that the powdered substance present in the weighed but untested packets is identical to the
       substance of the tested packets because powder is not homogenous. Jones, 174 Ill. 2d at 429
       (“random testing is permissible when the seized samples are sufficiently homogenous so that
       one may infer beyond a reasonable doubt that the untested samples contain the same
       substance as those that are conclusively tested”).
¶ 15       In Jones, the defendant was arrested while in possession of five plastic packets, each
       “containing a white rocky substance.” Jones, 174 Ill. 2d at 428, 430. The State’s evidence
       established that two of the five packets tested positive for cocaine; the remaining three
       packets, however, were not tested. Jones, 174 Ill. 2d at 428. According to the chemist, the
       total weight of all five packets was 1.4 grams, but the two packets actually tested weighed
       only 0.59 grams. Jones, 174 Ill. 2d at 428. The defendant was “convicted of possession with
       intent to deliver 1.4 grams of cocaine.” Jones, 174 Ill. 2d at 428.
¶ 16       On appeal, our supreme court affirmed the appellate court’s judgment to reduce the


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       defendant’s conviction in line with the weight of the substance actually tested. Jones, 174
       Ill. 2d at 430. The supreme court held that no inference could be drawn concerning the
       composition of the three untested packets. Jones, 174 Ill. 2d at 430. The court reasoned that
       “the five packets containing loose substances cannot be equated with identically marked and
       stamped tablets, pills, or capsules.” Jones, 174 Ill. 2d at 430. Absent a chemical analysis, it
       is “pure conjecture” that the contents of the three untested packets also contained cocaine,
       which is insufficient to prove beyond a reasonable doubt that the defendant possessed at least
       one gram of the illegal drug. Jones, 174 Ill. 2d at 430.
¶ 17        The defendant contends that we should reach the same outcome as in Jones. He argues
       in his main brief: “it is impossible to know if each packet contained heroin, and thus whether
       it was appropriately included in the total weight.” As in Jones, the defendant contends his
       conviction should be reduced to the lesser included offense.
¶ 18        There are, however, substantial differences between this case and Jones. Here, the
       chemist expressly testified that she weighed each of the nine packets separately. “I made sure
       that each was weighed separately.” In contrast to Jones, we have no testimony from chemist
       Rayford that she tested less than all nine foil packets, though the parties acknowledge that
       chemist Rayford’s testimony on direct examination, describing the preliminary and
       confirmatory tests on the suspected heroin, is ambiguous as to the number of packets actually
       tested:
                “Q. Can you tell us what’s a preliminary test?
                A. Preliminary tests are tests you do to look for a certain substance.
                Q. And did you do that in this case?
                A. Yes.
                Q. Did it result in any kind of finding?
                A. Yes. The preliminary tests were indicative of heroin.
                                                  ***
                Q. After you conducted this preliminary test, you said that you did a confirming test?
                A. Yes. A confirmatory analysis.
                Q. What was that?
                A. The GC mass spect. The gas chromatography mass spectrometry.
                Q. Can you please explain that to the ladies and gentlemen of the jury ***?
                A. That’s when you take a small amount of the sample, you put it into a glass vial
            with a reagent in it and then you put it on an instrument. And the instrument reads what’s
            in the vial and gives you a printout.
                Q. And based on that, after running this test, were you able to determine if there was
            a unique substance in People’s Exhibit 1?
                A. Yes.
                Q. What was that?
                A. It was heroin.


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                                                 ***
                Q. Based on your education, your background, on the test that you performed on
           People’s Exhibit 1, did you form an opinion as to what the controlled substance was in
           People’s Exhibit 1?
                A. Yes, I did.
                Q. What was that opinion?
                A. Positive for heroin.
                Q. And what was the amount?
                A. 1.3 grams.”
¶ 19       While chemist Rayford testified that “preliminary tests” were performed, suggesting that
       such tests were performed on more than one foil packet, at other times, she spoke in the
       singular: she testified to having conducted “[a] confirmatory analysis.” To support their
       contrary positions, each party focuses on the first step chemist Rayford described to perform
       the chemical analysis: “you take a small amount of the sample.”
¶ 20       The defendant contends chemist Rayford’s testimony that a confirmatory test is
       conducted by taking “a small amount of the sample” suggests that she tested only a random
       number of the nine foil packets. He does not expressly assert that commingling occurred. At
       the same time, based on the record before us, the defendant cannot tell us the number of
       packets that were tested at “random.” He simply asserts the chemist tested too few.
¶ 21       The State on the other hand contends that chemist Rayford’s testimony that she would
       have taken “a small amount of the sample” to perform the preliminary and confirmatory tests
       confirms that all nine packets were tested.
¶ 22       As each party acknowledges, chemist Rayford never explicitly testified to the number of
       packets actually tested. Thus, the dispositive question before us is whether the evidence
       permitted the jury to infer beyond a reasonable doubt that the seized packets contained 1.3
       grams of heroin or would such an inference be based on “pure conjecture” under Jones.
       Stated differently, in light of the evidence presented, did the jury act reasonably in finding
       him guilty of possession with intent to deliver 1.3 grams of heroin. See Ross, 229 Ill. 2d at
       272 (“because the trier of fact accepted certain testimony or made certain inferences based
       on the evidence does not guarantee the reasonableness of its decision”).
¶ 23       The record evidence in this case is unlike the evidence in Jones, where the chemist
       expressly testified that he tested only 2 of the 5 seized packets. Nor is this case like Clinton,
       where the chemist testified that he commingled the seized substances before he conducted
       the chemical tests. Finally, this case is unlike People v. Adair, 406 Ill. App. 3d 133, 135
       (2010), where defense counsel filed a motion in limine seeking to bar the chemist from
       testifying to the weights of the controlled substances in the seized pills because the testing
       procedure commingled nonhomogenous pills.
¶ 24       In this case, defense counsel did not challenge the disputed scientific evidence pretrial;
       nor does the defendant point to record testimony of the chemist that established the legal
       shortcomings of the scientific analysis. Rather, the defendant claims the ambiguous
       testimony of chemist Rayford regarding the number of packets she tested fails to prove the

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       weight element beyond a reasonable doubt. We understand the defendant to contend that the
       reasonable doubt standard compels a court of review to view ambiguous testimony as
       necessarily favoring the defense.
¶ 25        Under our adversarial criminal justice system, each party must challenge testimony that
       might lead the trier of fact to find in favor of the other side. See People v. Wheeler, 151 Ill.
       2d 298, 310-11 (1992) (“We have elected to employ an adversary system of criminal justice
       in which the parties contest all issues before a court of law.” (Internal quotation marks
       omitted.) (quoting United States v. Nobles, 422 U.S. 225, 230-31 (1975), quoting United
       States v. Nixon, 418 U.S. 683, 709 (1974))). Under our system, we allow the jury to decide
       on the inferences to be drawn from ambiguous testimony. See People v. McDonald, 168 Ill.
       2d 420, 447 (1995) (where evidence is capable of producing conflicting inferences, “it is best
       left to the trier of fact for proper resolution”).
¶ 26        The general rule regarding review of a guilty verdict reflects the deference accorded to
       the jury’s assessment of the evidence: “When reviewing a challenge to the sufficiency of the
       evidence, this court considers *** the evidence in the light most favorable to the State ***.”
       People v. Wheeler, 226 Ill. 2d 92, 114 (2007). Thus, it falls to the defendant to challenge
       ambiguous testimony during the course of the trial or else risk the application of this rule on
       appeal.
¶ 27        The prosecution, too, faces the prospect of not meeting its burden if the evidence
       establishes that proper testing procedures were not followed by the chemist testifying on
       behalf of the State. See Jones, 174 Ill. 2d at 430 (with the untested packets in its possession,
       the State was in the best position to answer whether those packets “contained cocaine or
       mere look-alike substances”); Adair, 406 Ill. App. 3d at 142 (it was the State’s responsibility
       to adduce evidence consistent with its theory of guilt; “we decline the State’s invitation to
       speculate” in the absence of such evidence). To remind the State of the obvious, had the
       chemist been asked to detail the testing procedure she followed regarding each of the seized
       packets, this issue likely would not be before us.
¶ 28        These admonitions aside, established authority regarding inferences guides our decision
       here. “An inference is a factual conclusion that can rationally be drawn by considering other
       facts. Thus, an inference is merely a deduction that the fact finder may draw in its discretion,
       but is not required to draw as a matter of law.” People v. Funches, 212 Ill. 2d 334, 340
       (2004). A “reviewing court must allow all reasonable inferences from the record in favor of
       the prosecution.” People v. Cunningham, 212 Ill. 2d 274, 280 (2004). However, “if only one
       conclusion may reasonably be drawn from the record, a reviewing court must draw it even
       if it favors the defendant.” Cunningham, 212 Ill. 2d at 280. Thus, the rules regarding
       inferences do not permit the defendant’s assertion that under the reasonable doubt standard
       we must draw from ambiguous testimony only the inference that favors the defendant.
¶ 29        Nor does the record before us support the defendant’s claim that chemist Rayford tested
       a random number of packets, whose total weight was almost certainly less than a gram.1


              1
                If each packet contained approximately the same amount of powder, or approximately .14
       grams, at least 8 packets needed to be tested to reach the one-gram threshold.

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       Unlike the testimony in Jones, the defendant’s claim here that only a random number of
       packets were tested amounts to conjecture.
¶ 30       Taking the evidence in the light most favorable to the prosecution, which includes
       allowing all reasonable inferences from the evidence consistent with the outcome, the jury’s
       verdict that the defendant was guilty of possession with intent to deliver 1.3 grams of a
       substance containing heroin was reasonable. Chemist Rayford explicitly testified that she
       weighed each foil packet individually. We will not presume the chemist took inconsistent
       approaches in weighing the seized packets and in testing the seized packets for a controlled
       substance. See People v. Miller, 218 Ill. App. 3d 668, 673 (1991) (“[W]here the record is
       unclear, we will not presume that an improper procedure was performed.”). The jury was free
       to infer from the testimony regarding the weighing process that chemist Rayford followed
       the same approach in performing her chemical analysis; that is, she tested each foil packet
       individually. See McDonald, 168 Ill. 2d at 447 (it is for the jury to determine which inference
       to draw from ambiguous evidence).
¶ 31       Chemist Rayford also described the confirmatory test she would have performed on the
       seized substance: “[Y]ou take a small amount of the sample, you put it into a glass vial with
       a reagent in it and then you put it on an instrument. *** [T]he instrument reads what’s in the
       vial.” From this testimony, the jury could have reasonably concluded that each seized packet
       constituted a “sample,” as chemist Rayford used that term (consistent with how that term has
       been used by our courts), which meant she tested each sample. See Jones, 174 Ill. 2d at 429
       (“a portion from each *** [seized] sample must be tested in order to determine the contents
       of each *** sample”).
¶ 32       In light of the deference owed to the jury’s verdict, especially when ambiguous testimony
       is before it, we reject the defendant’s contention that the State failed to prove the weight
       element of the charged offense beyond a reasonable doubt. Absent evidence in the record to
       the contrary, the jury could reasonably infer beyond a reasonable doubt that each foil packet
       was tested separately, which meant the defendant possessed with intent to deliver 1.3 grams
       of heroin.

¶ 33                                          Voir Dire
¶ 34       The defendant next contends the circuit court failed to comply with Rule 431(b) in
       questioning the venire, a claim we would ordinarily review de novo. People v. Thompson,
       238 Ill. 2d 598, 606 (2010) (compliance with a supreme court rule is reviewed de novo).
       However, the defendant neither objected to the trial judge’s voir dire nor claimed this as
       error in his posttrial motion, thus forfeiting review of this claim. People v. Enoch, 122 Ill.
       2d 176, 186 (1988).
¶ 35       Yet, the defendant does not assert plain error to compel our review. Thompson, 238 Ill.
       2d at 611 (“When a defendant has forfeited appellate review of an issue, the reviewing court
       will consider only plain error.”). Rather, he asserts that because Rule 431(b) imposes a sua
       sponte duty on the trial judge, no objection is required to preserve the alleged error: “Thus,
       requiring an objection would be contrary to the purpose of the amendment [imposing a sua
       sponte duty on the trial judge.]”

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¶ 36        Case law is universally to the contrary. Outside the context of plain error, “[a]n unbroken
       line of precedent mandates that a defendant must object to claimed errors at trial and raise
       them in his posttrial motions. [Citations.] Otherwise, they are procedurally defaulted or
       forfeited.” People v. Martinez, 386 Ill. App. 3d 153, 163 (2008) (citing People v. Banks, 161
       Ill. 2d 119 (1994), and People v. Naylor, 229 Ill. 2d 584 (2008)). Nonetheless, while we do
       not adopt the defendant’s novel position that Rule 431(b) makes a claim of plain error
       unnecessary, we address his contention that the voir dire conducted by the trial judge was
       reversible error to give guidance to the circuit court.
¶ 37        Rule 431(b) requires the trial judge to ask each potential juror “whether that juror
       understands and accepts” four essential principles of law:
            “(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 to testify cannot be held against him
            or her.” Ill. S. Ct. R. 431(b) (eff. May 1, 2007).
¶ 38        In this case, Judge Doody explained each of the first three principles to the jury venire
       and, after each explanation, asked whether any juror had “a problem with” or “disagree[d]
       with” each principle of law. Judge Doody then explained that the defendant did not have to
       testify, and asked the venire if they would “hold the fact that a Defendant may not testify at
       trial against that Defendant?” No prospective juror expressed a disagreement with any of the
       four principles of law.
¶ 39        In his main brief, the defendant explains the basis for his claim of error: “The judge in
       this case failed to comply with these obligations by failing to ask whether the jury both
       understood and accepted the [Rule 431(b)] principles, instead asking whether anyone had a
       ‘problem’ or ‘disagreed’ with the basic principles.” In his reply brief, the defendant argues
       “the failure to ensure that the jury understands and accepts the [Rule 431(b)] principles is a
       failure to ensure that the defendant receives a fair and impartial jury.”
¶ 40        The defendant does not explain, however, why the circuit court’s inquiry fell short of the
       rule’s requirements, other than to argue that the trial judge’s failure to use the words
       “understand” and “accept” rendered the voir dire “ineffective for the purpose of determining
       whether each juror understood and accepted the [Rule 431(b)] principles.” Nor does the
       defendant explain the manner in which he was prejudiced by the trial judge’s plain talk. For
       his claim of reversible error, the defendant relies solely on the possibility that his jury may
       not have been “fair and impartial” in absence of literal compliance with the language in Rule
       431(b).
¶ 41        We find the defendant’s concern over whether his jury was fair and impartial misplaced.
       The defendant fails to consider defense counsel’s role in selecting the jury that was seated
       to hear his case. If there was a problem with the judge’s voir dire, defense counsel was free
       to inquire directly of the venire to ensure that only “fair and impartial” jurors were selected.
       See People v. Brown, 388 Ill. App. 3d 1, 10 (2009) (no reason to forego the application of
       the forfeiture rule when “the defendant [had] the opportunity to ferret out any bias among the
       remaining potential jurors through voir dire questioning to ensure his right to a fair trial”).


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¶ 42       Suffice it to say, Judge Doody did not commit reversible error in his questioning of the
       venire. See People v. Glasper, 234 Ill. 2d 173, 201 (2009) (“We reject the idea that the trial
       court’s failure to conduct Rule 431(b)(4) questioning makes it inevitable that the jury was
       biased ***.”).
¶ 43       That said, the supreme court recently ruled that Rule 431(b) must be strictly followed:
       “Rule 431(b) *** mandates a specific question and response process. The trial court must
       ask each potential juror whether he or she understands and accepts each of the principles in
       the rule.” Thompson, 238 Ill. 2d at 607. Thus, after Thompson, it is likely error, though not
       reversible error under our analysis in this case, not to ask prospective jurors to respond to
       separate questions whether he or she “understands” and “accepts” each of the four principles.
       Modification to the language in Rule 431(b) is discouraged, much as modification of pattern
       jury instructions is discouraged. See People v. Bannister, 232 Ill. 2d 52, 87 (2008) (State’s
       modified instruction should not have been used “until this court’s Committee on Pattern Jury
       Instructions in Criminal Cases formally revises this series of instructions”).

¶ 44                                        DNA Fee
¶ 45       Finally, the defendant contends that Judge Doody’s imposition of the DNA fee must be
       vacated because he was assessed the same fee in an earlier conviction. In Marshall, the
       supreme court agreed with the defendant’s reading of the DNA analysis fee statute that it
       permits the $200 fee only “where that defendant is not currently registered in the DNA
       database.” Marshall, 242 Ill. 2d at 303. We therefore vacate the $200 DNA analysis fee
       imposed on the defendant.

¶ 46                                       CONCLUSION
¶ 47       In light of the record evidence, the jury was reasonable in finding the defendant guilty of
       possession with intent to deliver 1.3 grams of a substance containing heroin. In the absence
       of direct evidence to the contrary, we will not presume the State chemist failed to test each
       of the nine foil packets. No reversible error occurred in the voir dire of the prospective jurors
       by asking whether they had “a problem with” or “disagree[d] with” the four principles of law
       of Rule 431(b). Nonetheless, the circuit court must strictly follow Rule 431(b) to avoid a
       finding of trial court error. Finally, we vacate the $200 DNA analysis fee.

¶ 48       Affirmed in part and vacated in part.




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