                                       2014 IL 117094



                                  IN THE
                             SUPREME COURT
                                    OF
                           THE STATE OF ILLINOIS



                                    (Docket No. 117094)

         THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. DANIEL R.
                            BELKNAP, Appellee.


                              Opinion filed December 18, 2014.



        CHIEF JUSTICE GARMAN delivered the judgment of the court, with opinion.

        Justices Thomas, Kilbride, Karmeier, and Theis concurred in the judgment and
     opinion.

        Justice Burke specially concurred, with opinion, joined by Justice Freeman.



                                          OPINION

¶1       Following a jury trial in the circuit court of McDonough County, defendant, Daniel
     R. Belknap, was convicted of first degree murder in the death of five-year-old Silven
     Yocum. The trial court sentenced him to 24 years in prison. The appellate court, with
     one justice dissenting, reversed defendant’s conviction and remanded for a new trial.
     2013 IL App (3d) 110833. This court granted the State’s petition for leave to appeal. Ill.
     S. Ct. R. 315 (eff. July 1, 2013).



¶2                                    BACKGROUND

¶3      This was defendant’s second jury trial on the murder charge. His first conviction
     was reversed by the appellate court and remanded for a new trial due to the trial court’s
     failure to comply with Supreme Court Rule 431(b) (Ill. S. Ct. R. 431(b) (eff. May 1,
     2007)) during jury selection when it did not ask the potential jurors whether they
     understood and accepted the four principles contained in that rule. The appellate court
     reviewed the error under the plain error doctrine and found the error reversible because
     the evidence was closely balanced. People v. Belknap, 396 Ill. App. 3d 183 (2009).

¶4       Evidence at defendant’s second trial showed that on September 10, 2006, Silven
     was transported to McDonough District Hospital (MDH) by ambulance after her
     mother, Erin Yocum, called 911 and reported that Silven was having seizures. She was
     later airlifted to St. Francis Hospital in Peoria, where she received treatment for
     swelling in her brain and underwent surgery to remove a blood clot from her brain. The
     treatments were unsuccessful and Silven remained in a coma until her death on
     September 16, 2006. Forensic pathologists who testified at defendant’s trial opined that
     Silven died from a closed-head injury due to multiple blunt force trauma, causing
     bleeding on her brain, and bruising and abrasions to her head. The injuries resulted
     from nonaccidental blows and could have been delivered by a human hand, fist, foot, or
     an object. The injuries were most likely sustained between 12 and 24 hours prior to the
     onset of Silven’s seizures. One of the pathologists, Dr. Mitchell, stated that Silven
     sustained five distinct blows to the head. The trauma would not likely have been caused
     by falling off a trampoline or by falling down one time. The other pathologist, Dr.
     Blum, opined that Silven sustained three blows to her head. Loss of consciousness
     would take several hours to occur because it takes time for the brain to swell and begin
     to bleed. Symptoms would include loss of appetite, listlessness, sleepiness, seizure, and
     an inability to wake.

¶5       Defendant and Erin were romantically involved. Erin and Silven spent a lot of time
     at defendant’s house and Silven was due to start kindergarten in August 2006. At some
     point shortly before Silven’s death, she and Erin moved into defendant’s house. Erin
     and defendant were methamphetamine (meth) users. Larry Leasman testified that he
     stopped by defendant’s house in the early morning hours of September 9, 2006, and
     they smoked meth in the garage. While Leasman was there, Erin returned from a trip to
     Wal-Mart. He did not recall whether Erin also smoked meth with them, but Erin
     testified that she did not. She went into the house to go to bed. She awoke at about 6
     a.m. and went to join defendant in the garage. Silven joined them sometime later.
     During the day, Erin noticed that Silven seemed sluggish and tired and was very clingy.
     She thought Silven might be getting sick. When defendant asked Silven to go into the
     house with him and help him make breakfast, Silven cried and said she did not want to
     go with defendant. After breakfast, defendant took Silven for a ride on his
                                              -2-
     four-wheeler. Later that day, because Silven had no one to play with, Erin went to the
     home of her brother, Erik, and brought his six-year-old son, Brett, back to defendant’s
     house to play with Silven. When Erin returned with Brett, Silven was still not feeling
     well. There was a trampoline in the yard. Silven would not jump on it with Brett, but
     instead sat in a chair and watched him. Erin testified that Silven did not complain of
     any headaches, she was not bleeding, and Erin did not notice anything unusual about
     her physical appearance.

¶6       Later that evening, Erik arrived to pick up Brett for a birthday party. Silven went
     with him to drop Brett off at the party. When Erik and Silven returned to defendant’s
     house, Erik commented to Erin that Silven did not seem to have much of an appetite,
     which was unusual for her. Erik then left. Sometime later, Erik called Erin and said one
     of the tires on his truck fell off while he was on his way to pick up Brett from the party.
     Defendant stayed home with Silven while Erin went to pick up Erik. She was gone
     about 20 minutes and when she and Erik returned, Silven was in bed. The next
     morning, September 10, 2006, Erin got up to use the bathroom and noticed that Silven
     was snoring loudly. She did not go into the bedroom to check on Silven. Erin went into
     Silven’s room around noon and discovered that Silven was seizing. She would not
     wake up. Erin called 911.

¶7       At MDH, a doctor told Erin that Silven had been tied at the ankles, sodomized, and
     that she had a punctured bowel and a broken sternum. None of this turned out to be
     true. As Silven was being airlifted to St. Francis, defendant and Erin got in the car to
     drive to the hospital. Partway there, defendant decided not to go. Erin got out of the car
     and went on to the hospital with her parents, who had been following in their own car.
     St. Francis personnel told Erin and her parents that defendant was not allowed to be
     there.

¶8       Erin testified that she had previously been involved with another man, Andy Yates,
     for several years. Yates and Silven had a very close relationship and when Erin started
     dating defendant, Silven had difficulty being away from Yates and being with
     defendant. However, according to Erin, defendant and Silven got along well.
     Defendant was very good to Silven and appeared to love her. He was not angry with her
     and never screamed at her or spanked her. Erin also testified that Silven did not like
     being uprooted from her former home and that she could sense that Silven was not fond
     of defendant.



                                              -3-
¶9         Erin denied causing Silven’s injuries. She did not know how Silven was injured and
       did not notice any injuries to her body. Erin testified that she had several interviews
       with the police and that she felt they were unfairly targeting defendant and trying to get
       her to implicate defendant in Silven’s death. Defendant was being held in the Tazewell
       County jail on federal drug charges and Erin visited him many times while he was
       there. This was before he was charged with Silven’s murder, which took place more
       than a year after Silven died. Erin wrote many letters to him and they had numerous
       phone conversations. She maintained her relationship with defendant because she
       loved him and did not believe he had caused Silven’s death. When Erin complained to
       defendant that the sheriff wanted to interview her yet again and that she did not want to
       go, defendant advised her not to talk to the sheriff and to change her cell phone number.

¶ 10       Erik Yocum testified that the night he was at defendant’s house, Silven did not want
       to stay there and she begged and cried to be allowed to go home with Erik. When he got
       to the house the next day after Erin had called 911, defendant was on the front porch
       brushing his teeth. Erin was in Silven’s bedroom and appeared upset. Defendant
       appeared concerned, but not upset.

¶ 11       Two of the paramedics who responded to Erin’s 911 call testified. Silven was
       having convulsions when they arrived. Her upper extremities were shaking
       uncontrollably, her eyes were open and fixed to the right, and there was nystagmus
       (uncontrolled shaking of the eyeballs). She did not respond to any stimuli. She also had
       dried blood around her nose and mouth. One of the paramedics, Aaron Wilson, testified
       that he did not see defendant in the room while he was there, but he acknowledged that
       defendant could have come in without Wilson seeing him. Wilson also testified that
       when he was kneeling over Silven, he saw defendant pacing in the kitchen, saying,
       “Oh, shit; oh damn; and goddamn.” Another paramedic, Heather Connor, stayed with
       Silven at MDH until she was airlifted to St. Francis. Erin was upset and in a state of
       shock. She stayed with Silven in the trauma bay, rubbing her hand and stroking her
       head. Defendant was also there but he kept his back turned to Silven and did not
       approach her.

¶ 12       Michael Skelton, a friend of defendant’s, testified that on the morning of Monday,
       September 11, 2006, he was working at his job for the City of Macomb when he saw
       defendant walking near the building in which the sheriff’s office is located. When he
       stopped to talk, defendant said he needed to talk to “them about some shit.” Defendant
       did not say who “them” was, but Skelton assumed he meant the sheriff’s office.
       Defendant asked Skelton how to get into the building and Skelton drove defendant
                                               -4-
       around to the front of the building and dropped him off. Skelton did not see whether
       defendant went inside.

¶ 13       Defendant’s cousin, Matthew Hocker, testified that on the night of September 10,
       2006, defendant came to his residence, crying and shaking. Defendant told Hocker
       what happened to Silven and said he was concerned about not being allowed to go to
       the hospital. Hocker testified that defendant wondered aloud if he should be worried
       about the police contacting him. Defendant said something about a trampoline. Hocker
       had seen defendant around Silven and never noticed any problems.

¶ 14       Jill Kepple was a friend of defendant. She testified that defendant came to her house
       the evening of September 10, 2006. He was nervous and upset and was pacing. He
       asked Kepple if she thought someone would call the police regarding what happened to
       Silven. He told Kepple that he did not know what could have happened to Silven.

¶ 15       Two jailhouse informants testified for the State. Joseph Burgess shared a cell with
       defendant at the Tazewell County jail between April 2007 and July 2007. Burgess was
       facing multiple charges, including aggravated arson, residential burglary, arson, and
       burglary. He and defendant became friends. At the time of defendant’s trial, Burgess
       was serving an eight-year prison sentence for aggravated arson. Burgess testified that
       he and defendant sometimes made jailhouse alcohol. Toward the end of their jail time
       together, Burgess and defendant were drinking alcohol and talking about birthdays.
       Defendant mentioned that it would be Silven’s birthday were she alive. When Burgess
       asked defendant what happened, defendant became emotional and started pacing. He
       told Burgess that Silven had walked in on him while he was smoking meth and said that
       if he did not stop, she would tell on him. Defendant said he slapped Silven, went
       berserk, and killed her. Defendant said he had been up for two weeks on meth and he
       thought his condition might have caused his reaction. Some weeks later, when
       defendant and Burgess were in the dayroom, defendant told the other inmates there that
       Silven died as the result of hitting her head on a trampoline. As he said this, defendant
       winked at Burgess. While Burgess was disturbed by what defendant had told him, he
       did not immediately go to the authorities. Eventually, Burgess decided to report what
       defendant had said, believing it was the right thing to do. Although Burgess talked to
       his attorney before going to the authorities, he did not do so with the intention of
       getting any benefit on a potential sentence. Burgess acknowledged, however, that
       before he spoke to the authorities, he had received a plea offer of 22 years in prison and
       that after he gave a statement, he received an eight-year sentence instead.


                                               -5-
¶ 16       Another jailhouse informant, Jeffrey Ahlers, testified that he and defendant were in
       the same unit of the jail from around August 15, 2007, to mid-October 2007. They
       became acquainted through Alcoholics Anonymous (AA) meetings. During the
       meetings, the inmates would discuss religion and how they had hurt their families with
       their alcohol and substance abuse. Ahlers and defendant talked about “tweaking,”
       which means being awake for an extended period of time while using meth. During
       such periods, according to Ahlers, a person might become paranoid and do things they
       would not ordinarily do. Defendant said he had “tweaked” many times while using
       meth. After one AA meeting, defendant and Ahlers were talking about religion and
       how someone who had killed another person would not go to heaven. Defendant broke
       down and began sobbing. He told Ahlers that shortly before Silven was hospitalized, he
       had been afraid that Silven had either said something or was going to say something
       about defendant’s drug use to a Drug Abuse Resistance Education (D.A.R.E.) officer at
       her school. The day Silven was injured, defendant had been tweaking and had not slept
       in a long time. Silven said something that irked him and he lost control and hit Silven in
       the head. Ahlers testified that defendant said he slapped, punched, hit, and pushed her a
       few times. Defendant said he realized that he had hurt Silven badly and that his actions
       had resulted in her death. Defendant said that Erin was in the corner of the room when
       this happened and was “freaking out.”

¶ 17       Ahlers did not immediately inform the authorities about what defendant had told
       him. He acknowledged that, in October 2007, the sheriff transported him from the
       Tazewell County jail to the McDonough County jail, that the sheriff asked Ahlers if he
       knew anything about defendant’s case and that Ahlers said he did not. Shortly before
       Christmas, Ahlers started thinking about the fact that Silven would never have another
       Christmas and about Silven’s family not knowing who was responsible for her injuries.
       Ahlers went to the authorities and was interviewed by the sheriff on December 26,
       2007. Ahlers denied asking for any consideration on his charges or possible sentences
       in return for his statement about defendant’s case. Ahlers admitted that he made his
       statement a few days after another inmate, Nathan Wallick, had come into Ahlers’ unit.
       Wallick had been interviewed by the sheriff about defendant’s case. Ahlers denied
       talking to Wallick or another inmate named Nathan Ralph about defendant. He testified
       that he was not aware that the men said Ahlers had spoken with them about defendant’s
       case. Ahlers acknowledged an extensive criminal history that included several crimes
       involving dishonesty. He admitted being imprisoned five times for crimes of
       dishonesty. His convictions included forgery, deceptive practices, and retail theft
       committed in several different Illinois counties.

                                               -6-
¶ 18       A portion of defendant’s testimony from his first trial was read to the jury.
       Defendant testified that he smoked meth numerous times during the week prior to
       Silven’s injury. He stayed up much of the time. The day before Silven was found
       seizing in her bed, she had complained of some headaches. He and Erin attributed this
       to Silven’s new glasses. She did not seem as active as usual and was clinging to Erin.
       Defendant took her for a ride on his four-wheeler. Later, Erin put Silven in bed to rest,
       as she was not feeling well. Erin left to pick up her nephew, Brett. While she was gone,
       defendant finished what he was doing in the garage and went into the house to take a
       shower. Silven was lying on her bed with her eyes closed. After Erin returned with
       Brett, Silven jumped on the trampoline for a little while, but got off saying she wanted
       to watch Brett jump. Neither defendant nor Erin smoked meth that day. Defendant’s
       testimony was consistent with Erin’s with regard to the events surrounding the
       breakdown of Erik’s truck. Later that evening, defendant went to Erin’s house to get
       her diabetes medicine. He stopped to get them something to eat. When he returned,
       Erin was sleeping on the couch and Silven was asleep in her bed. The next day, Erin
       woke him about 1 p.m. and stated that Erik was going to pick up some food for lunch.
       Defendant went into Silven’s room. Silven was wheezing and her eyes did not look
       right. Defendant called for Erin. They tried unsuccessfully to wake Silven up. Erik
       arrived with Brett and defendant went outside to meet them. He told Erik that
       something was wrong and to go inside the house. Defendant stayed outside with Brett.
       Once the paramedics arrived, defendant showed them to Silven’s room, but he stayed
       outside with Brett because Brett was confused and there were several people in
       Silven’s room. At MDH, defendant learned about the nature of Silven’s injuries. He did
       not remember turning his back on Silven in the emergency room. He did not remember
       much about being at MDH at all. On the way to St. Francis, Erin told defendant that the
       police had told her at MDH that they knew defendant had injured Silven and they
       questioned her about what happened. She also told him that one of the doctors had said
       Silven had been tied at the ankles and sodomized, and that every bone in her body was
       broken. Defendant became upset and decided not to go to St. Francis. Defendant pulled
       the car over to the side of the road and let Erin out of the car to continue on to the
       hospital with her parents.

¶ 19       After defendant got home, he received a call from Erin’s mother telling him not to
       come to St. Francis. He went to the home of his friends, Scott Kepple and Jill
       Goodpasture (now Kepple), and asked them if they would try to find out why he was
       not wanted at the hospital. Defendant testified that he might have asked Kepple and
       Goodpasture whether they thought someone was going to call the police. His reason for

                                               -7-
       asking this was the phone conversation with Erin’s mother and his feeling that she was
       implying that he had something to do with Silven’s injuries. Defendant admitted going
       to Matt Hocker’s house. He testified that he may have made a statement while there
       about whether he had to worry about the police knocking on his door. However, he did
       not remember making that statement. After Silven died, defendant felt he was being
       harassed by the police. He was constantly being pulled over in his car. One officer
       offered to talk to him about his meth use. Eventually, he called the officer and told him
       about his meth problem. After he did, defendant was charged with a federal drug
       offense and jailed. He ultimately received a sentence of 44 months in federal prison.

¶ 20        Defendant testified about the jailhouse informants, Burgess and Ahlers. He
       admitted becoming acquainted with Ahlers through AA, but he denied telling Ahlers
       that he had struck Silven or had gone berserk and killed Silven. Defendant also denied
       telling Ahlers that he believed Silven was going to talk to a D.A.R.E. officer about his
       meth use. In fact, defendant never spoke to Ahlers about Silven or his family.
       Defendant did not think Silven knew what drugs were and she never told him she was
       going to talk to a D.A.R.E. officer. Defendant denied that he and Burgess ever made
       jailhouse alcohol. Burgess was accumulating items to make the alcohol, but the cells
       were searched on a daily basis and the items were confiscated. Both defendant and
       Burgess were disciplined for that. He and Burgess did become friends and defendant
       would occasionally talk to Burgess about Erin and Silven. He acknowledged telling
       Burgess about Silven’s birthday when Erin sent him a picture of Silven sitting on his
       front porch with a birthday cake. However, defendant denied telling Burgess that he
       had struck Silven. Defendant also testified that he never joked about Silven’s death or
       said she had fallen off a trampoline.

¶ 21       Defendant testified that his attorney in his federal case told him not to talk to
       anyone at the jail about the federal case or any other possible charges because of the
       presence of jailhouse informants who would give false testimony to obtain a break on
       their charges or sentencing. Defendant stated that he followed this advice and did not
       talk to anyone about his legal troubles.

¶ 22       Defendant denied that he caused Silven’s injuries. He, Erin, and Erik were the only
       people who were around Silven during the time when she would have sustained her
       injuries. Defendant stated that neither Erik nor Erin struck Silven during that time.
       Defendant admitted he told Erin not to talk to the police anymore and that he advised
       her to change her cell phone number. He did this because Erin was complaining that the
       police were harassing her.
                                               -8-
¶ 23        The defense presented an affidavit from Burgess’s attorney concerning leniency
       Burgess received on his Tazewell County charges. He was tried on an aggravated arson
       charge by stipulated bench trial. No agreement was made as to sentencing, but at the
       request of Burgess’s attorney, the McDonough County State’s Attorney wrote a letter
       to the judge concerning Burgess’s cooperation on defendant’s case. Burgess was
       initially sentenced to 12 years in prison, but that sentence was reduced to 8 years on
       reconsideration.

¶ 24       Mark Godar, a correctional officer at the Tazewell County jail, testified that cell
       inspections were done every day. Once a week there is a “shakedown” which involves
       searching each cell for any kind of contraband. In a search of Joseph Burgess’s cell in
       August 2007, officers recovered several bottles of juice, bread wrapped in a sock, a
       bottle that had contained a cleaning solution, sugar, and candy.

¶ 25      Another correctional officer, Richard Johnston, testified to a disciplinary hearing in
       which Burgess stated that he intended to use the materials to make “hootch,” which is a
       kind of alcohol. Johnston testified that to his knowledge, no one had successfully made
       “hootch” in the jail.

¶ 26      Candice Simmons, Erin’s cousin, testified that about a year before Silven died, she
       heard Erin say that if Silven ever told anyone about Erin’s drug use, she would
       “f***ing kill her.” Simmons did not actually believe that Erin would kill Silven.

¶ 27       McDonough County Sheriff Rick VanBrooker testified that early on in his
       investigation, he made up his mind that defendant had killed Silven. When he
       interviewed Erin, however, he claimed to be searching for the truth. The “theme” of the
       interviews was that defendant had killed Silven in a meth-induced rage. Despite using
       several interrogation tactics, Erin never told VanBrooker that defendant injured Silven.
       In October 2007, while transporting Ahlers to the McDonough County jail,
       VanBrooker asked Ahlers whether he knew anything about Silven’s death. Ahlers said
       he did not. However, this changed in December 2007 when Ahlers asked to speak to
       someone about Silven’s death. VanBrooker interviewed Ahlers. He denied coaching
       Ahlers to give a certain version of events. VanBrooker did not follow up on any
       inconsistencies in Ahlers’ statement nor did he confront Erin with the information that
       defendant had said she was in the room when he attacked Silven.

¶ 28       McDonough County State’s Attorney, James Doyle, testified that he did not offer
       Burgess a deal on his McDonough County charges. Burgess did not ask for anything in
       return for giving his statement.
                                               -9-
¶ 29        Deputy Sheriff John Carson testified that he was the crime scene investigator in
       Silven’s case. He went to MDH and spoke with two doctors. They told him that Silven
       had traumatic head injuries and other suspicious bruising indicative of abuse. There
       was an injury on her back with a pattern to it as though it had been caused by a shoe.
       Carson conducted two searches of defendant’s residence in September 2006 with his
       consent. Carson took photographs of several pairs of shoes, but none of them seemed to
       match the pattern on Silven’s back. No fingerprints were taken and no evidence was
       sent to the crime lab for DNA testing. Carson did not examine defendant’s hands to see
       if they were injured.

¶ 30       Tessa Pfafman and Gretchen Weiss testified for the defense. Silven and Pfafman’s
       daughter were friends. Silven spent a night at Pfafman’s house in June 2006. The next
       day, Silven did not want to leave, so Pfafman allowed her to stay an additional night.
       Erin did not show up the following day to pick up Silven and she did not call. Silven
       ended up staying two additional nights. Pfafman’s friend, Gretchen Weiss, picked
       Silven up and took her to the pool with her own children.

¶ 31       Weiss testified that while they were at the pool, Silven started to cry. Weiss noticed
       that Erin had arrived to pick Silven up. Weiss thought Silven’s reaction was strange,
       given that she had not seen her mother for three days. Erin seemed agitated and upset
       and she spoke harshly to Silven. After Weiss learned that Silven had died, she reported
       the incident to police.

¶ 32      Jami Hocker testified that she was a friend of Erin’s. On Saturday, September 9,
       2006, Erin called her to ask if Silven could play with Hocker’s children at Hocker’s
       house. Hocker testified that Erin seemed agitated and upset when Hocker told her she
       was unable to have Silven over to her house. Hocker also testified that Erin was a good
       mother.

¶ 33       Chris Butcher, school resource officer at Silven’s school, testified that one of his
       responsibilities was teaching the D.A.R.E. program to the fifth grade. He did not teach
       the D.A.R.E. program to kindergarten students, but he did not recall whether he had
       gone into the kindergarten classroom at the beginning of the school year in 2006.
       Butcher testified that he wore his uniform while at the school and that he would attempt
       to visit all the classrooms in the school.

¶ 34       Forensic pathologist, John Ralstan, testified for the defense. He reviewed Silven’s
       autopsy report and other materials. He agreed that Silven died from multiple blunt
       force trauma to her head that was inflicted within 12 to 24 hours prior to the onset of
                                               - 10 -
       symptoms. The blows were severe and caused deep tissue damage to her brain. The
       injuries were round or oval in shape and could have been caused by a medium-sized
       cylindrical object. Either a man or a woman could have inflicted the injuries. Ralstan
       found it doubtful that a hand or knuckles caused the injuries due to the separate nature
       and size of the injuries.

¶ 35       The jury convicted defendant of first degree murder. The trial court sentenced him
       to 24 years’ imprisonment. Defendant filed a posttrial motion in which his principal
       argument was that the evidence was insufficient to convict him. He did not raise any
       issue regarding the trial court’s Rule 431(b) admonitions nor did he raise any argument
       concerning alleged improper comments by the prosecutor during opening statements
       and closing arguments.

¶ 36        Defendant appealed. He argued that (1) the evidence was insufficient to convict
       him; (2) the trial court erred in failing to ask potential jurors whether they understood
       the principles set forth in Rule 431(b) and the evidence was closely balanced; and (3)
       the prosecutor made improper comments during opening statements and closing
       arguments. The appellate court rejected defendant’s argument that the evidence was
       insufficient to convict him. The court found that the trial court committed error in
       failing to ask prospective jurors whether they understood the Rule 431(b) principles.
       The court conducted plain error review under the first prong of the plain error doctrine
       and determined that the evidence was closely balanced. The court explained its
       reasoning:

              “As defendant points out, there were no eyewitnesses who saw defendant
              commit the crime and no physical evidence to directly link defendant to the
              crime. The strongest evidence that the State presented was the testimony of the
              two jailhouse informants regarding defendant’s alleged confession to them. As
              we pointed out in the last trial in this case, although such testimony may
              ultimately be found to be credible by the trier of fact and may form the basis of
              a guilty verdict, it must be treated with caution. [Citation.] In addition, the
              remaining circumstantial evidence presented could have either been viewed as
              indicative of defendant’s guilt or explained innocently away depending on the
              view of that evidence taken by the jury. Under those circumstances, we find that
              the evidence was closely balanced.” 2013 IL App (3d) 110833, ¶ 91.

¶ 37      The appellate court rejected the State’s argument that there is a de minimis
       exception to the closely balanced prong of the plain error doctrine, stating that a

                                              - 11 -
       defendant is not required to show any additional prejudice beyond showing that the
       evidence was closely balanced. Because it reversed defendant’s conviction and
       remanded for a new trial, the appellate court did not address defendant’s argument
       concerning the prosecutor’s alleged improper comments during opening statements
       and closing arguments.



¶ 38                                       ANALYSIS

¶ 39       The State raises the following issues in this appeal: (1) whether the appellate court
       failed to properly apply the closely balanced evidence prong of the plain error rule by
       looking only at a portion of the State’s evidence in isolation, rather than reviewing all
       the evidence in context; and (2) whether, even if the evidence is closely balanced,
       reversal is not required unless the error alone likely tipped the scales of justice against
       defendant. Defendant has cross-appealed, arguing that (1) the evidence was insufficient
       to convict him of first degree murder; and (2) the prosecutor committed reversible error
       by comments made during his opening statement and closing argument.



¶ 40                                      State’s Appeal

¶ 41       We first address whether the trial court committed error in failing to ask
       prospective jurors whether they understood the principles set forth in Rule 431(b). This
       is a question we review de novo. People v. Wilmington, 2013 IL 112938, ¶ 26. At the
       time of defendant’s second trial, the rule provided:

                  “(b) The court shall ask each potential juror, individually or in a group,
              whether that juror understands and accepts the following principles: (1) that the
              defendant is presumed innocent of the charge(s) against him or her; (2) that
              before a defendant can be convicted the State must prove the defendant guilty
              beyond a reasonable doubt; (3) that the defendant is not required to offer any
              evidence on his or her own behalf; and (4) 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.

                  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.”
              (Emphasis added.) Ill. S. Ct. R. 431(b) (eff. May 1, 2007).
                                               - 12 -
¶ 42       The voir dire in this case was conducted in panels of six prospective jurors.
       Following questioning of the first panel, the trial court stated:

                 “I’m going to ask some questions of you as a group and if you have an
              answer other than what’s obvious, raise your hand.

                  The defendant in this case is presumed to be innocent. That principle is one
              that is essential to our system of justice. Do you all agree with the principle that
              a person charged with a criminal offense is presumed to be innocent? If there’s
              anyone who doesn’t agree with that please [raise] your hand.

                  The record should reflect there are no hands raised.

                  The State has the burden of proof and they have to prove the defendant’s
              guilt beyond a reasonable doubt and that burden stay[s] with the State
              throughout the trial. Do you all accept the principle that the State has the burden
              of proving a defendant’s guilt beyond a reasonable doubt? Again, if there’s
              anyone who can’t accept that principle please raise your hand.

                  The defendant is not required to present any testimony, not required to
              present any evidence. He is presumed to be innocent. You are not allowed to
              draw any inference from the fact the defendant chooses to remain silent and not
              to draw an inference if he chooses not to present any testimony or evidence. Is
              there anyone who has any quarrel with that principle of law? Again, raise your
              hand.

                  The record should reflect there are no hands raised at this time.

                   Part of that principle is the defendant’s not required to prove his innocence.
              Is there anyone who doesn’t agree with that principle? Again, raise your hand.

                  The record should reflect that are no hands raised.”

¶ 43      The trial court followed the same procedure with each of the remaining five panels.
       Although the language used varied slightly, the questioning of the first panel on the
       Rule 431(b) principles is representative of the questioning of the other panels.

¶ 44      The trial court asked only whether the potential jurors disagreed with, had any
       quarrel with, or accepted those principles. In concluding that the trial court failed to
       comply with the rule, the appellate court relied upon this court’s recent decision in
       People v. Wilmington, 2013 IL 112938. There, the trial court admonished the entire
                                             - 13 -
       group of potential jurors of the Rule 431(b) principles and asked the group as a whole
       whether any of them disagreed with any of the principles, but the court did not ask the
       jurors whether they understood those principles. Prior to addressing the defendant’s
       plain error argument, this court considered whether the trial court’s omission
       constituted error. While we noted that it is arguable that the trial court’s asking for
       disagreement, and getting none, is equivalent to the jurors’ acceptance of the Rule
       431(b) principles, the court’s failure to ask the jurors whether they understood the
       principles is error in and of itself. This court also noted that the trial court did not
       inquire as to the jurors’ acceptance and understanding of the principle that the
       defendant’s failure to testify could not be held against him. Id. ¶¶ 28, 32.

¶ 45       Wilmington cited a prior decision of this court, People v. Thompson, 238 Ill. 2d 598
       (2010). That case also involved a failure by the trial court to comply with Rule 431(b).
       There, the trial court informed the prospective jurors as a group of some of the Rule
       431(b) principles. This court found several violations of the rule by the trial court,
       including that the court failed to ask the prospective jurors whether they both
       understood and accepted the Rule 431(b) principles. We noted that the language of
       Rule 431(b) is clear and unambiguous; the rule states that the trial court “shall ask”
       whether jurors understand and accept the four principles set forth in the rule. The
       failure to do so constitutes error. Id. at 607.

¶ 46        The State concedes in its brief that the trial court here committed error in failing to
       ask the prospective jurors whether they understood the Rule 431(b) principles. We
       accept this concession. Based upon Thompson and Wilmington, we conclude that the
       trial court committed error when it failed to ask prospective jurors whether they both
       understood and accepted the principles set forth in Rule 431(b). Here, the trial court did
       not explicitly ask the potential jurors whether they accepted the principles; rather the
       court asked if they had any disagreement or quarrel with the principles. As we noted in
       Wilmington, it may be arguable that asking jurors whether they disagreed with the Rule
       431(b) principles is tantamount to asking them whether they accepted those principles.
       However, the trial court’s failure to ask whether the jurors understood the principles
       constitutes error alone. Wilmington, 2013 IL 112938, ¶ 32.

¶ 47       Defendant did not object to the trial court’s failure to comply with Rule 431(b), nor
       did he include the issue in his posttrial motion. Thus, defendant forfeited the issue on
       appeal. See People v. Enoch, 122 Ill. 2d 176, 186 (1988). This court has previously held
       that Rule 431(b) errors are not structural errors and therefore not per se reversible
       because failure to comply with the rule does not automatically result in a biased jury.
                                                - 14 -
       Thompson, 238 Ill. 2d at 610-11. The appellate court found the evidence closely
       balanced. Thus, we review whether the appellate court erred in its plain error analysis.

¶ 48       Forfeited errors are reviewable in two instances: (1) where a clear or obvious error
       occurred and the evidence is so closely balanced that the error alone threatened to tip
       the scales of justice against the defendant, regardless of the seriousness of the error and
       (2) where a clear or obvious error occurred and that error is so serious that 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
       (2007); People v. Herron, 215 Ill. 2d 167, 186-87 (2005).

¶ 49       The State argues that the appellate court misapplied the closely balanced evidence
       prong of the plain error test by looking only at a portion of the State’s trial evidence in
       isolation and deeming it less than conclusive. The State argues that the appellate court
       explicitly refused to perform a qualitative analysis of all of the evidence in context. The
       State further argues that this court’s precedents have recognized that plain error review
       under the closely balanced prong requires a commonsense, contextual analysis of the
       totality of the evidence. Defendant agrees that a commonsense, contextual analysis is
       required by this court’s precedents, but disagrees that the appellate court failed to
       undertake such an analysis. The State further argues that the evidence is not closely
       balanced in this case, but that even if it is, reversal is not appropriate unless the Rule
       431(b) error likely had some impact on the jury’s verdict.

¶ 50       The parties are correct that a reviewing court must undertake a commonsense
       analysis of all the evidence in context when reviewing a claim under the first prong of
       the plain error doctrine.

¶ 51       People v. Adams, 2012 IL 111168, is an example of this court’s application of a
       contextual analysis of the evidence under a claim of plain error. The defendant argued
       that the prosecutor committed reversible error in comments made during closing
       argument. Adams involved a traffic stop. Officer Boers arrested the defendant for
       driving on a suspended license. Boers testified that during a search incident to the
       arrest, he found a small plastic sandwich bag containing a white powdery substance in
       the defendant’s left front pocket. A field test indicated the presence of cocaine. The
       defendant testified that the plastic bag was lying on the ground and was not in his
       pocket. He claimed he had never seen it before. He described it as a flat piece of paper
       with something white on it. The first time he saw it was when Boers pointed to it with
       his foot and asked the defendant about it. The defendant testified that after he was

                                               - 15 -
       placed in the backseat of the police car, Boers asked him whether he knew any drug
       dealers or had any information on guns or killing, and threatened him with prison if he
       did not provide the requested information. In rebuttal, a second officer, Schumacher,
       who was at the scene corroborated Boers’ testimony, stating that he saw Boers pull the
       plastic bag from the defendant’s pocket and that Boers did not drop or retrieve anything
       from the ground. Id. ¶¶ 7-12.

¶ 52       This court noted that in making a determination of whether the evidence is closely
       balanced, a reviewing court must make a commonsense assessment of the evidence
       within the context of the circumstances of the individual case. We concluded that the
       prosecutor’s comments constituted error, but that the evidence was not closely
       balanced. Whereas the appellate court had found the evidence closely balanced due to
       the conflicting testimony of the defendant and the two police officers, this court
       characterized the evidence as follows:

              “In this case, defendant testified that he was already out of his car when the
              police arrived but that he did not see any of the officers place anything on the
              ground. In addition, in explaining why the cocaine could not have been
              recovered from him, defendant stated that it could not ‘have been in anyone’s
              pocket’ because it was lying on a flat piece of paper or plastic that ‘did not look
              like a bag.’ Thus, the jury heard from defendant the following version of events:
              A piece of paper or plastic with cocaine on it was sitting in a parking lot.
              Although unsecured in any way, the cocaine powder had not been disturbed by
              wind, weather or traffic. By coincidence, defendant parked his car next to the
              cocaine. In a further coincidence, after defendant was approached by the police,
              he was escorted to and searched in a spot only inches from the cocaine. Then,
              when Boers discovered the cocaine on the ground, he conspired on the spot to
              attribute the drugs to defendant in an apparent attempt to pressure defendant to
              provide information about other crimes, though there was no indication that the
              police had ever met defendant or would have reason to believe that he
              possessed such information. We think it clear from the foregoing that
              defendant’s explanation of events, though not logically impossible, was highly
              improbable.” Id. ¶ 22.

¶ 53       In People v. White, 2011 IL 109689, in evaluating whether the evidence was
       closely balanced, this court noted the potential for bias or lack thereof by the witnesses,
       and the element that fear of the defendant played in the testimony of some of the
       witnesses. We noted that the State’s identification witnesses were completely
                                               - 16 -
       independent of each other and that it would have been an unlikely coincidence that they
       all misidentified defendant. On the other hand, many of defendant’s witnesses were his
       friends or family. After performing a qualitative, as opposed to a strictly quantitative,
       commonsense assessment of the evidence, this court found the evidence not closely
       balanced. Id. ¶¶ 135-39.

¶ 54       The parties here disagree as to whether the appellate court properly determined that
       the evidence was closely balanced. The appellate court extensively reviewed the
       evidence adduced at defendant’s second trial. Ultimately, the court determined that the
       testimony of the two jailhouse informants must be viewed with caution, that no
       physical evidence directly linked defendant to Silven’s injuries, that there were no
       eyewitnesses who saw defendant commit the crime, and that defendant’s words and
       actions in the days following the child’s hospitalization were not unequivocally
       indicative of a guilty conscience, but could be subject to an innocent explanation as
       well.

¶ 55      We note that, while it is true that the testimony of jailhouse informants must be
       viewed with caution, the credibility of a government informant, as with any other
       witness, is a question for the jury. People v. Manning, 182 Ill. 2d 193, 210 (1998).
       Thus, the testimony of jailhouse informants is not to be viewed as inherently
       unbelievable.

¶ 56       We disagree with the appellate court and find that the evidence in this case was not
       closely balanced. While there were no eyewitnesses to the crime, other evidence
       pointed to defendant as the perpetrator and excluded any reasonable possibility that
       anyone else inflicted Silven’s injuries. The evidence showed that only three people
       were around Silven during the relevant period prior to her seizures: defendant, Erin,
       and Erik. Defendant conceded in his testimony from the first trial that neither Erin nor
       Erik had caused Silven’s injuries. Defendant was alone with Silven for short periods of
       time in the 24 hours prior to her hospitalization. He was smoking meth during this
       period and stayed up for days at a time. Circumstantial evidence of defendant’s words
       and actions following the discovery of Silven’s injuries was presented. One of the
       paramedics testified that as he was treating Silven, he observed defendant pacing back
       and forth in the kitchen and saying “Oh, shit; oh damn; and goddamn.” Defendant
       seemed to avoid Silven at the house and in the emergency room at MDH. He decided
       not to go with Erin to St. Francis, instead returning home. On the night Silven was
       taken to the hospital, defendant went to the residence of his cousin, Matthew Hocker,
       and was crying and shaking. He expressed concerns about not being allowed to go to
                                              - 17 -
       the hospital and wondered aloud if he should be worried about the police contacting
       him. He expressed the same concerns to Jill Kepple that same evening. Defendant
       appeared to be nervous and upset. On the morning after Silven was taken to St. Francis,
       a friend, Michael Skelton, saw defendant walking near the building housing the
       sheriff’s office. Defendant told Skelton that he needed to talk to “them about some
       shit.” Skelton took defendant to the front of the building after he asked how to get
       inside. Given defendant’s concerns expressed to Kepple and Hocker the prior evening
       about the police contacting him, the most reasonable inference is that “them” referred
       to the sheriff’s office.

¶ 57       Added to the circumstantial evidence is the testimony of Burgess and Ahlers,
       recounted above. Their testimony must be viewed with caution given that such
       informants often expect to and do receive consideration on their own charges and
       sentencing in return for their testimony, thus providing an incentive to testify falsely.
       We acknowledge that Ahlers, in particular, had been convicted several times of crimes
       of dishonesty. Ahlers’ criminal history, as well as that of Burgess, is only one factor to
       be weighed in determining their credibility.

¶ 58        Burgess testified that when he asked defendant what happened to Silven, defendant
       said Silven had walked in on him while he was using meth and said she would tell on
       him if he did not stop. According to Burgess, defendant said he had not slept for about
       two weeks while on meth and that he went into a rage and killed Silven. In his own
       testimony from the first trial, defendant admitted to smoking meth numerous times
       during the week prior to Silven’s death and staying awake for much of that time.
       Burgess also testified that when defendant spoke to others at the jail about what
       happened to Silven, he told them Silven had hit her head on a trampoline and then
       defendant winked at Burgess. The testimony of Burgess and Ahlers was consistent in
       that they both testified that defendant told them he had been using meth that weekend,
       that he had not slept, and that he killed Silven after she either said something that
       irritated him, or told him that she would tell the D.A.R.E. officer at her school that
       defendant was on drugs. Burgess and Ahlers were not in the Tazewell County jail at the
       same time. There is no evidence that they communicated about defendant. This lends
       further credence to their testimony. While defense counsel tried to suggest that Ahlers
       had spoken about defendant’s case with two other inmates, Ahlers denied this.

¶ 59       Defendant testified that due to his meth use, he had not slept during the weekend
       prior to Silven’s hospitalization. This is consistent with Ahlers’ testimony that
       defendant told him he had been tweaking the weekend Silven was injured. Ahlers
                                               - 18 -
       testified that a person who was tweaking might become paranoid and behave in an
       uncharacteristic manner.

¶ 60       There were only three people who could have inflicted Silven’s injuries. There is
       no suggestion that Erik was the perpetrator. Defendant attempted to portray Erin as a
       bad mother, but this evidence was contradicted by the testimony of defendant’s own
       witnesses. While there was testimony that Erin left Silven in the care of Pfafman for
       longer than she should have and that she became irritated with Silven when she picked
       her up, one of defendant’s witnesses, Jami Hocker, testified that Erin was a good
       mother. Further, while Candice Simmons testified that Erin said that if Silven ever told
       anyone about Erin’s drug use, she would kill her, Simmons said that she did not believe
       Erin was serious.

¶ 61       Although defendant denied that Silven told him she had told or would tell the
       D.A.R.E. officer about his drug use and he presented testimony from the D.A.R.E.
       officer that he did not teach the D.A.R.E. program to Silven’s class, the officer also
       testified that he wore his uniform at the school and he tried to visit all the classrooms in
       the school. The jury could have inferred from this that Silven was aware of the presence
       of the D.A.R.E. officer at her school.

¶ 62       Viewing the evidence in a commonsense manner in the context of the totality of the
       circumstances, we conclude that the evidence in this case was not closely balanced.
       Thus, the appellate court erred in reversing defendant’s conviction and remanding for a
       new trial. Because we find that the evidence was not closely balanced, we need not
       address the State’s argument that a further showing that the error itself likely had some
       impact on the jury’s verdict must be made in first-prong plain error cases.



¶ 63                                       Cross-Appeal

¶ 64       Defendant argues that the prosecutor committed reversible error by improperly
       attempting to evoke sympathy for Silven in his opening statement and closing
       argument. Defendant complains of the following in the prosecutor’s opening
       statement:

                  “Friday, September 8th, 2006, was the last healthy and the last happy day in
              the life of five year old Silven Yocum. Kindergarten student. Her whole future
              lay ahead of her; promised to be a bright and productive one. This is how she
              looked when she was ready to go to school on her first day of kindergarten,
                                               - 19 -
              August 21st, 2006; little back pack, her favorite little red dress. Her smile as
              she’s [waving] to her mom. That’s the way I want you to remember Silven.”

¶ 65       Defendant also complains of the following remarks made by the prosecutor in his
       closing argument:

                   “Silven Yocum was wise beyond her years. In her brief time on this earth
              she was eager to begin her journey into her quest for learning. Loved school,
              just starting out. She was only known by the teachers at Lincoln school for two
              weeks. They only knew her for two weeks, yet they remember her as a special
              little girl, even remember her ability in art and that her favorite color was
              purple.

                  Silven Yocum, she deserved a lot more tomorrows than yesterdays. It’s
              your time to be the voice of Silven just like Burgess said he couldn’t be but
              would come forward. She’s speaking out from these autopsy photos. She’s
              talking to you. She doesn’t have a voice any more but you can be the voice for
              her.

                 Do this justice for Silven Yocum and for yourselves because you’ve been
              chosen to decide this very important issue of why Silven today is not in the fifth
              grade.”

¶ 66       Defendant acknowledges that he did not object to these remarks nor did he include
       the issue of the alleged improper comments in his posttrial motion. To preserve an
       alleged error for review, a defendant must both make an objection at trial and include
       the issue in a posttrial motion. Enoch, 122 Ill. 2d at 186. Therefore, defendant has
       forfeited this issue for review. Defendant asks this court to review his argument under
       the first prong of the plain error doctrine, asserting that the evidence at his trial was
       closely balanced. We have previously concluded that the evidence in this case was not
       in fact closely balanced. Accordingly, there is no need for us to determine whether the
       prosecutor’s comments constituted error.

¶ 67       Defendant next argues that the State failed to prove him guilty of Silven’s murder
       beyond a reasonable doubt. When reviewing a challenge to the sufficiency of the
       evidence, this court considers whether, viewing the evidence in the light most
       favorable to the State, “ ‘any rational trier of fact could have found the essential
       elements of the crime beyond a reasonable doubt.’ ” (Emphasis omitted.) People v.
       Collins, 106 Ill. 2d 237, 261 (1985) (quoting Jackson v. Virginia, 443 U.S. 307, 319

                                              - 20 -
       (1979)); see also People v. Smith, 185 Ill. 2d 532, 541 (1999). A conviction will be
       reversed only where the evidence is so unreasonable, improbable, or unsatisfactory that
       it justifies a reasonable doubt of the defendant’s guilt. Id. at 542.

¶ 68        The appellate court determined that the evidence was sufficient to convict
       defendant beyond a reasonable doubt. We agree. There is no dispute that Silven
       suffered blunt force trauma that caused brain damage resulting in her death. Only
       defendant, Erin, and Erik were around her during the time when she sustained her
       injuries. There is no dispute that Erik did not cause the injuries. Although defendant
       presented some evidence purporting to show the possibility that Erin may have
       inflicted the injuries, when defendant testified and was asked whether Erik or Erin
       struck Silven, he answered that they did not. Defendant, on the other hand, testified that
       he was a meth user, that he used meth the weekend of Silven’s injuries and that using
       meth helped him stay awake. Ahlers testified that defendant told him he was
       “tweaking” that weekend and that when Silven said something that irritated him, he
       lost control, struck her, and killed her. Burgess testified that defendant broke down and
       said that when Silven told him she would tell on him for his drug use, he went into a
       meth-induced rage and struck her. As the appellate court noted, although Ahlers and
       Burgess were jailhouse informants, they were not in the Tazewell County jail at the
       same time. Although their testimony must be viewed with caution, they testified
       similarly concerning what defendant told them about losing control while on meth and
       killing Silven. It was for the jury to determine whether they were credible witnesses. In
       addition, the State presented circumstantial evidence tending to show that defendant
       behaved in a manner indicative of guilt. He decided not to go to St. Francis, he asked
       two people if they thought the police might come to question him, and he was found
       walking near the sheriff’s office and saying that he had to talk to “them.” Defendant
       also advised Erin to avoid questioning by the sheriff and to change her cell phone
       number. Viewed in the light most favorable to the prosecution, we conclude the
       evidence was sufficient to convict defendant.



¶ 69                                     CONCLUSION

¶ 70       We hold that the trial court committed error in failing to comply with Rule 431(b)
       by not asking the prospective jurors whether they understood the four principles set
       forth in the rule. We also hold that the evidence in this case was not closely balanced
       and, thus, plain error review is unwarranted. We further hold that the evidence was

                                               - 21 -
       sufficient to convict defendant. Accordingly, we reverse the judgment of the appellate
       court.



¶ 71      Appellate court judgment reversed.



¶ 72      JUSTICE BURKE, specially concurring:

¶ 73      I agree with the majority that the judgment of the appellate court must be reversed.
       However, my reasons for reaching that result differ from the majority’s. I therefore
       specially concur.

¶ 74                                              I

¶ 75       Following a jury trial, the defendant, Daniel R. Belknap, was convicted of the first
       degree murder of the five-year-old victim and sentenced to 24 years’ imprisonment. On
       appeal, defendant argued, in part, that his conviction should be reversed because the
       circuit court failed to comply with Supreme Court Rule 431(b) (Ill. S. Ct. R. 431(b)
       (eff. May 1, 2007)). This rule requires the circuit court to ask each prospective juror if
       he “understands and accepts” that the defendant is presumed innocent, that the State
       has the burden of proof and must prove the defendant guilty beyond a reasonable doubt,
       and that the defendant’s right not to testify may not be held against him. The circuit
       court in this case asked the prospective jurors if they agreed with and accepted the Rule
       431(b) principles, but the court did not separately ask whether they understood them.
       This was error under People v. Wilmington, 2013 IL 112938, ¶ 32 (“the trial court’s
       failure to ask jurors if they understood the four Rule 431(b) principles is error in and of
       itself” (emphasis in original)).

¶ 76        Defendant did not raise the Rule 431(b) error in the circuit court. However, the
       appellate court concluded it could reach the merits of defendant’s contention under the
       first prong of the plain error rule because the evidence presented at trial was closely
       balanced. On this basis, the appellate court reversed defendant’s conviction and
       remanded the matter for a new trial. 2013 IL App (3d) 110833.




                                               - 22 -
¶ 77                                              II

¶ 78       The plain error doctrine allows errors not raised in the circuit court to be considered
       on appeal when either: “(1) a clear or obvious error occurred and the evidence is so
       closely balanced that the error alone threatened to tip the scales of justice against the
       defendant, regardless of the seriousness of the error, or (2) a clear or obvious error
       occurred and that error is so serious that 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 (2007). In this case, the appellate
       court applied the first prong of the plain error doctrine. The State contends that it did so
       incorrectly.

¶ 79       According to the State, the appellate court simply concluded that the evidence in
       this case was closely balanced, concluded that there was error and then, mechanically,
       concluded there was plain error. The State maintains that the appellate court should
       have examined the totality of the evidence in a “qualitative” way to determine whether
       the “evidence was so closely balanced that the error alone severely threatened to tip the
       scales of justice against him.” People v. Herron, 215 Ill. 2d 167, 186-87 (2005). The
       State asserts that recent decisions from this court, such as People v. Adams, 2012 IL
       111168, and People v. White, 2011 IL 109689, have emphasized this “commonsense
       assessment” of the evidence in determining whether there is plain error and, under this
       type of analysis, defendant’s conviction should be affirmed.

¶ 80       Defendant, in response, does not dispute the State’s characterization of the first
       prong of the plain error test, agreeing that a reviewing court should, when determining
       whether the evidence is closely balanced, make a commonsense assessment of the
       evidence “within the context of the circumstances of the individual case.” Defendant,
       however, disputes the State’s application of the test in this case. Defendant maintains
       that the appellate court carefully reviewed the evidence, properly concluded that it was
       closely balanced and, therefore, properly determined that the Rule 431(b) error was
       plain error.

¶ 81       The majority rejects defendant’s argument. The majority examines the evidence
       introduced at trial and, in agreement with the State, concludes that it was not closely
       balanced. Accordingly, the majority holds that defendant failed to establish that the
       Rule 431(b) error met the first prong of plain error analysis and, therefore, reverses the
       judgment of the appellate court.


                                                - 23 -
¶ 82       I disagree with both the majority’s and the appellate court’s plain error discussion
       because they both assume, without explanation, that the voir dire error at issue in this
       case is suitable for the first prong of plain error analysis. This assumption is incorrect.

¶ 83       A criminal defendant has a constitutional right to trial by an impartial jury. People
       v. Strain, 194 Ill. 2d 467, 475 (2000). Jurors “must harbor no bias or prejudice which
       would prevent them from returning a verdict according to the law and evidence.” Id. at
       476. To secure this right, inquiry is permitted during voir dire “ ‘to ascertain whether
       the juror has any bias, opinion, or prejudice that would affect or control the fair
       determination by him of the issues to be tried.’ ” People v. Lobb, 17 Ill. 2d 287, 300
       (1959) (quoting Connors v. United States, 158 U.S. 408, 413 (1895)).

¶ 84       When a defendant alleges that his conviction should be reversed because a question
       went unasked during voir dire, the reviewing court must determine whether the
       unasked question concerns an area of bias that would prevent the jury from returning a
       verdict according to the facts and law, and whether the bias was incapable of being
       eliminated by admonitions or instructions given at trial. If these criteria are met, then
       the defendant has established that he was deprived of his constitutional right to an
       unbiased jury. See, e.g., People v. Stack, 112 Ill. 2d 301, 312-13 (1986) (failure to
       allow a question regarding the insanity defense deprived the defendant of the right to an
       impartial jury); People v. Oliver, 265 Ill. App. 3d 543, 551 (1994) (same).

¶ 85      Trial before a biased jury is structural error. People v. Thompson, 238 Ill. 2d 598,
       610 (2010). Structural errors, because they undermine the integrity of the judicial
       process itself, require automatic reversal of a defendant’s conviction, with no
       consideration given to the nature or amount of evidence introduced at trial. Id. at 608.
       Thus, if a defendant can establish that a question which went unasked during voir dire
       was necessary to ensure a fair jury, then the verdict must be reversed, regardless of
       whether the evidence at trial was overwhelming, closely balanced or somewhere in
       between. The weight of the evidence is simply irrelevant. See id.; see also People v.
       Glasper, 234 Ill. 2d 173, 227 (2009) (Burke, J., dissenting, joined by Freeman, J.).

¶ 86        Similarly, the weight of the evidence is also irrelevant if the reviewing court
       concludes that the unasked question was not necessary to ensure a fair jury. In that
       situation, the defendant would have received exactly what voir dire is meant to
       provide—a fair, impartial jury. Accordingly, there could be no basis for reversal, even
       if the evidence was closely balanced. Again, the weight of the evidence is irrelevant.


                                               - 24 -
¶ 87        In short, when a defendant contends that his conviction should be reversed because
       a question went unasked at voir dire, the weight of the evidence introduced at trial is of
       no moment. Either the defendant received a fair and impartial jury or he did not. The
       trial evidence has no bearing on that question.

¶ 88       Given the above, it is apparent that the first prong of plain error analysis is unsuited
       for the error at issue here. By definition, the first prong of plain error is concerned with
       whether the evidence introduced at trial is closely balanced and, if so, whether reversal
       is warranted in light of that fact. But the weight of evidence has nothing to do with the
       quality of voir dire or whether a defendant received an impartial jury. Necessarily then,
       the first prong of plain error analysis is inappropriate for determining whether the
       failure to ask a question at voir dire amounts to plain error.



¶ 89                                             III

¶ 90       If plain error occurred in this case, it could only occur under prong two of the plain
       error analysis, i.e., the fundamental fairness prong. However, this court rejected the
       argument that the failure to ask a Rule 431(b) question amounts to plain error under
       prong two in People v. Thompson, 238 Ill. 2d 598 (2010). In that case, this court
       concluded that the Rule 431(b) questions, although required as a matter of supreme
       court rule, were not necessary to ensure an unbiased jury. Id. If the complete absence of
       a Rule 431(b) question does not result in a biased jury and, hence, plain error under
       prong two, then the circuit court’s error in this case also cannot amount to plain error.

¶ 91        I dissented in Thompson. Id. at 616-19 (Burke, J., dissenting, joined by Freeman,
       J.). I expressed the view in Thompson that the court’s decision was a de facto
       overruling, without acknowledgement or justification, of People v. Zehr, which had
       held that the questions set forth in Rule 431(b) were “vital to the selection of a fair and
       impartial jury.” People v. Zehr, 103 Ill. 2d 472, 477 (1984). I acknowledge, however,
       that Thompson is the law. Accordingly, because the error at issue in this case does not
       amount to plain error under prong two, I agree with the majority that the judgment of
       the appellate court in this case must be reversed.



¶ 92      JUSTICE FREEMAN joins in this special concurrence.


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