                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Vesey, 2011 IL App (3d) 090570




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



District & No.             Third District
                           Docket No. 3-09-0570


Filed                      September 27, 2011


Held                       Defendant’s conviction for unlawful possession of a controlled substance
(Note: This syllabus       was reversed and the cause was remanded for a new trial where the trial
constitutes no part of     court failed to comply with Supreme Court Rule 431(b) when the court
the opinion of the court   did not ask certain members of the jury about some of the Zehr
but has been prepared      principles, and although defendant failed to preserve her objection to the
by the Reporter of         procedure, the “conventional” plain error analysis was applied, and based
Decisions for the          on the closely balanced evidence, the clear and obvious error was found
convenience of the
                           to have prejudiced defendant.
reader.)


Decision Under             Appeal from the Circuit Court of Rock Island County, No. 08-CF-1265;
Review                     the Hon. Thomas C. Berglund, Judge, presiding.



Judgment                   Reversed and remanded.
Counsel on                  Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, and
Appeal                      Ron D. Dolak, of Konicek & Dillon, P.C., of Geneva, for appellant.

                            Jeff Terronez, State’s Attorney, of Rock Island (Terry A. Mertel and
                            Gary F. Gnidovec, both of State’s Attorneys Appellate Prosecutor’s
                            Office, of counsel), for the People.


Panel                       JUSTICE HOLDRIDGE delivered the judgment of the court, with
                            opinion.
                            Presiding Justice Carter and Justice O’Brien concurred in the judgment
                            and opinion.




                                              OPINION

¶1          After a jury trial, the defendant, Janet Vesey, was convicted of unlawful possession of
        a controlled substance. 720 ILCS 570/402(c) (West 2008). She appeals her conviction and
        argues that she is entitled to a new trial because the trial court failed to comply with Illinois
        Supreme Court Rule 431(b) (eff. May 1, 2007). We reverse and remand.

¶2                                               FACTS
¶3                             I. Discovery of the Controlled Substance
¶4          On December 23, 2008, the defendant and her sister had spent the day finishing their
        Christmas shopping. They had also visited Walmart so the defendant could try on bras and
        girdles for an event that the defendant had to attend the following January. During the early
        morning hours of December 24, they were pulled over by Officer Ibrahim Ramirez. Ramirez
        pulled the defendant over because the vehicle’s license plates were suspended. During the
        traffic stop, the defendant admitted to the officer that her driver’s license was suspended. She
        was arrested, and the officer performed a limited pat-down on her, which mainly consisted
        of checking her pockets for weapons.
¶5          The defendant was taken to the Rock Island County jail, and she was turned over to
        correctional officer Michelle Haun. Haun took the defendant to a small room so that she
        could have some privacy while changing into jail-issued clothing. Haun testified that she
        looked in the room before taking the defendant in. As the defendant was removing her bra,
        Haun heard a noise and the defendant say “[t]hat’s not mine, [t]hat’s not mine!” Haun
        described the noise as a “light little thud.” Looking down, she saw a bag on the floor that
        contained a white substance and a straw.
¶6          According to the defendant, she was strip searched when she was taken into the small
        room. After she had changed into the jumpsuit, she bent over to put on flip-flops and saw the

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     bag on the floor. She told Haun about the bag because she did not want to be blamed for it
     later. Haun said that it must have fallen from the defendant’s bra and gave the bag to another
     officer. The substance tested positive for cocaine.

¶7                                         II. Voir Dire
¶8       The trial of this matter took place on April 23, 2009. The trial court conducted voir dire
     by calling panels of four prospective jurors at a time. During the first panel, the court asked:
         “Do each of you folks understand that the defendant is presumed innocent at this point
         and has a right to have a trial?
                                                ***
             And the presumption of innocence, folks, remains with the defendant throughout the
         entire case, and it’s not overcome unless the State is able to show her guilt beyond a
         reasonable doubt. Do each of you understand that?
                                                ***
             And do each of you understand that the defendant is presumed innocent and has a
         right to rely on that presumption of innocence and has a right to put on no evidence
         whatsoever if she wants to. Do each of you understand that?
                                                ***
             And if the defendant would choose not to put on any evidence, that fact could not be
         considered by you in judging her guilt or innocence. Do each of you understand that?
                                                ***
             Do any of you have any quarrels or disagreements with any of these propositions of
         law?”
¶9       The State and the defendant accepted all four individuals on the jury. The trial court then
     called the second panel and asked:
         “And do all of you understand the burden of proof issues that we have been talking
         about? In other words, at this point the defendant is presumed innocent of the charge and
         she is entitled to rely on that presumption of innocence throughout the entire case. Do
         each of you understand that?
                                                ***
             And do each of you understand that presumption of innocence is not overcome unless
         the State is able to prove her guilt beyond a reasonable doubt? Do each of you
         understand that?”
     The defense attorney also inquired of the second panel:
         “Does anyone feel as though myself or Ms. Vesey has anything that they have to prove
         here today? Anyone? Raise your hand if you think that we do?
                                                ***
             If I were to sit here, and obviously I’m not going to, I’ve obviously expressed that
         I’m going to be calling some witnesses, and stare at the ceiling tile and not call any
         witnesses, would you think that I have done something wrong?

                                               -3-
                                                  ***
               Does anybody feel as though–my question here is to make sure you understand that
           my client as she sits here today is an innocent person. She does not have to prove
           anything. That the entire burden of proof remains on the State. Does anybody have a
           problem with that?”
¶ 10       Three of the four panel members were accepted onto the jury. The next prospective juror
       was questioned individually by the trial court and the attorneys, and he was accepted onto
       the jury. The trial court asked him if he understood the principles of reasonable doubt and
       the presumption of innocence. This juror was not asked if he accepted those principles of
       law.
¶ 11       The last four jurors that eventually made it onto the jury were all asked if they
       understood the presumption of innocence and the fact that the State had to prove the
       defendant guilty beyond a reasonable doubt. Those jurors were also asked if they had any
       quarrels with those principles of law.
¶ 12       After the trial, all of the jurors were instructed on the presumption of innocence and the
       burden of proof. The jury found the defendant guilty, and she was sentenced to 24 months
       of probation. She appealed.

¶ 13                                         ANALYSIS
¶ 14        The defendant argues that she was denied the right to a fair trial because the trial court
       failed to strictly comply with Rule 431(b). Ill. S. Ct. R. 431(b) (eff. May 1, 2007). The
       defendant admits that she did not object to this error during trial, or raise the issue in a
       posttrial motion, and that failure to do so ordinarily results in forfeiture of the issue. People
       v. Schaefer, 398 Ill. App. 3d 963 (2010). Therefore, in order for the defendant to succeed in
       her argument, the trial court must have committed plain error. People v. Herron, 215 Ill. 2d
       167 (2005). Under the plain error rule, we will remand for a new trial only if: (1) the
       evidence is closely balanced; or (2) the error was so serious it denied the defendant a fair
       trial. Herron, 215 Ill. 2d 167.
¶ 15        Rule 431(b) 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 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.” (Emphases added.) Ill. S. Ct. R. 431(b) (eff. May 1, 2007).
¶ 16        In this case, error occurred because certain members of the jury were not asked about
       some of these principles. No member of the jury was asked whether he or she understood
       and accepted that the defendant’s refusal to testify could not be held against her. In addition,
       4 of the 12 jurors were not asked by the trial court if they accepted the presumption of


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       innocence or the State’s burden of proof.1 The trial court’s failure to properly question jurors
       under Rule 431(b) constitutes noncompliance with the rule. People v. Thompson, 238 Ill. 2d
       598 (2010).
¶ 17        The issue then becomes whether the error warrants a new trial. The defendant first argues
       that she is entitled to a new trial because the evidence in this case is closely balanced. The
       defendant points out that she presented four witnesses at trial while the State only offered
       two. In addition, the trial largely came down to Haun’s word against the defendant’s. This
       suggests that the evidence was closely balanced because there was no corroborating evidence
       of guilt and defendant’s verdict was decided by who the jury found more credible. See
       People v. Naylor, 229 Ill. 2d 584, 608 (2008) (holding that evidence was closely balanced
       where “[t]he evidence boiled down to the testimony of *** two police officers against that
       of the defendant”).
¶ 18        In Herron, the court stated that where there is error in a closely balanced case it is
       important to err on the side of fairness so as to not convict an innocent person. Herron, 215
       Ill. 2d 167. Once the defendant proves that there was an error and that the evidence was
       closely balanced, the error is considered prejudicial. Id. The Herron court explained:
            “If the defendant carries the burden of persuasion and convinces a reviewing court that
            there was error and that the evidence was closely balanced, the case is not cloaked with
            a presumption of prejudice. The error is actually prejudicial, not presumptively
            prejudicial.” Herron, 215 Ill. 2d at 193.
       See also People v. Piatkowski, 225 Ill. 2d 551, 564-65, 568, 571-72 (2007).
¶ 19        In People v. White, 2011 IL 109689, our supreme court noted that a defendant may
       obtain reversal of his conviction under the closely-balanced-evidence prong of plain error
       only if he can show that he was prejudiced by the alleged error. White, 2011 IL 109689,
       ¶ 133. However, in our view, this does not alter the rule established in Herron, i.e., that a
       defendant may show prejudice (and therefore obtain reversal of his conviction) merely by
       showing that the trial court committed an error and that the evidence was closely balanced.
       In White, the supreme court held that the evidence was not closely balanced. White, 2011 IL
       109689, ¶¶ 134-42. Thus, under the rule set forth in Herron, the White court reasonably
       concluded that the defendant had failed to prove that the error alleged by the defendant was
       prejudicial. White does not upend the established principle that if a defendant shows that
       there was error and that the evidence was closely balanced (as the defendant has done in this
       case), the error is both prejudicial and reversible and no further showing of actual prejudice
       is required. Thus, although White states that a defendant alleging plain error under the
       closely-balanced-evidence prong must “show that he was prejudiced” (White, 2011 IL
       109689, ¶ 133), a defendant may show such prejudice merely by showing that an error


               1
                Although three of those four were asked by the defendant’s attorney if they “ha[d] a
       problem” with those principles, this does not change the fact that the trial court failed to provide each
       juror an opportunity to respond to specific questions concerning the principles set forth in Rule
       431(b). See People v. Hill, 408 Ill. App. 3d 23, 28 (2011); People v. Stewart, 406 Ill. App. 3d 518,
       534-35 (2010). Moreover, the fourth juror was not asked by either the trial court or the defense
       attorney if he accepted the principles.

                                                     -5-
       occurred and that the evidence was closely balanced. Herron, 215 2d at 193.
¶ 20       However, although White’s holding is consistent with the traditional plain error analysis
       applied in Herron, certain statements in White appear to be in tension with that analysis. For
       example, White compares the showing of prejudice required in plain error cases to the
       showing of prejudice required in cases involving claims of ineffective assistance of counsel
       based on evidentiary error. White, 2011 IL 109689, ¶ 133. In the latter cases, a defendant
       must show that there was a “ ‘reasonable probability’ of a different result had the evidence
       in question been excluded.” Id. ¶ 133 (quoting Strickland v. Washington, 466 U.S. 668, 694
       (1984)). Applying this “results-oriented” analysis (id. ¶ 134), the supreme court noted that
       the alleged error at issue in White was not prejudicial because it did not “figure prominently
       in the [trial] court’s finding of guilt.” Id. ¶ 140; see also id. ¶¶ 133, 135. These statements
       arguably conflict with Herron’s rulings that a defendant alleging plain error “need not prove
       that the error *** actually misled” the fact finder and that a defendant may prove prejudice
       merely by showing “that there was error and that the evidence was closely balanced.”
       Herron, 215 Ill. 2d at 193. However, we conclude that these statements in White are dicta
       which are unnecessary to the court’s holding. As noted above, White held that the defendant
       could not show prejudice because the evidence was not closely balanced. Because White’s
       holding is consistent with the traditional plain error analysis announced in Herron, we do
       not read White as changing that analysis.2
¶ 21       Moreover, although White apparently modified another aspect of the traditional plain
       error analysis, this modification does not effect our analysis or our conclusion in this case.
       White acknowledged that, “as a matter of convention,” the supreme court “has typically
       undertaken plain-error review by first determining whether error occurred at all.” White,
       2011 IL 109689, ¶ 144. Typically, only after the court has first determined that an error
       occurred will the court proceed to determine whether the evidence in the case was closely
       balanced, rendering the error reversible. See, e.g., People v. Sargent, 239 Ill. 2d 166, 189-90
       (2010). However, in White, the court broke with convention and determined that the
       evidence was not closely balanced without first determining whether any error had occurred.
       Because the court found that the evidence was not closely balanced, it affirmed the
       defendant’s conviction on that basis without determining whether the trial court had erred.3
       The court applied this unconventional analysis for three reasons. First, the error alleged by
       the defendant was a constitutional error, and the established doctrine of constitutional
       avoidance requires courts to avoid the adjudication of constitutional issues if the case can


               2
                If the supreme court intended to overrule the traditional plain error analysis announced in
       Herron, we would expect it to acknowledge that it was doing so, particularly considering that it cited
       Herron when defining the scope of the prejudice requirement in plain error cases. White, 2011 IL
       109689, ¶ 133. We should not assume that the supreme court has overruled a well-established prior
       decision sub silentio if we can avoid making that assumption.
               3
                 The court was able to reach this result because the only basis for the defendant’s claim of
       plain error was his claim that the evidence was closely balanced. The defendant did not argue for
       plain error review under the second prong of the plain error doctrine. White, 2011 IL 109689, ¶¶ 131,
       144.

                                                    -6-
       be decided on other grounds. White, 2011 IL 109689, ¶¶ 144-48. Second, the record before
       the trial court was inadequately developed to permit a fair review of the defendant’s claim
       of error because the State did not have an opportunity to adduce all available evidence
       bearing on the defendant’s constitutional contentions. Id. ¶¶ 143, 148. Third, because the
       evidence was not closely balanced, any error committed by the trial court would not have
       prejudiced the defendant. Thus, it was unnecessary to determine whether any error had
       occurred. Id. ¶¶ 144-48.
¶ 22        None of these considerations applies here. The error at issue in this case is the trial
       court’s failure to comply with Illinois Supreme Court Rule 431(b), not any alleged
       constitutional error. Moreover, the record of the trial court’s error is sufficiently developed
       for us to review it. In addition, because the evidence in this case is closely balanced, any
       error committed by the trial court would be automatically prejudicial. Thus, unlike the facts
       presented in White, the facts in this case require us to determine whether an error occurred.
¶ 23        For all these reasons, we conclude that the “conventional” plain error analysis is
       appropriate in this case. Having applied that analysis, we hold that the trial court erred by
       failing to comply with the requirements of Rule 431(b). Although the error in this case was
       minimal, there is no de minimis exception to the first prong of the plain error test. People v.
       Belknap, 396 Ill. App. 3d 183 (2009). Moreover, we find that the evidence in this case was
       closely balanced. Accordingly, the trial court’s clear and obvious error prejudiced the
       defendant. Therefore, we do not need to reach the second prong of the plain error test, and
       we reverse and remand for a new trial.

¶ 24                                    CONCLUSION
¶ 25      For the foregoing reasons, the judgment of the circuit court of Rock Island is reversed,
       and the cause is remanded for further proceedings.

¶ 26      Reversed and remanded.




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