                             ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                             People v. Radcliff, 2011 IL App (1st) 091400




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



District & No.               First District, Fourth Division
                             Docket No. 1–09–1400


Filed                        June 23, 2011


Held                         Defendant’s conviction was reversed and his sentence was vacated for
(Note: This syllabus         possession of a stolen motor vehicle and the cause was remanded for a
constitutes no part of the   new trial where the presiding judge left the courtroom without calling
opinion of the court but     a recess and allowed the cross-examination of a witness to continue
has been prepared by the     while he was absent, since the Illinois Supreme Court established a
Reporter of Decisions for    bright-line rule in Vargas that only a rule that requires reversal when a
the convenience of the       judge totally absents himself or herself from the proceedings will
reader.)                     effectively remove any incentive that might otherwise exist for the
                             judge to disregard the significant interests involved in a criminal trial.


Decision Under               Appeal from the Circuit Court of Cook County, No. 09–CR–4166; the
Review                       Hon. Vincent M. Gaughan, Judge, presiding.



Judgment                     Reversed and remanded.
Counsel on                   Michael J. Pelletier, Patricia Unsinn, and Daniel T. Mallon, all of State
Appeal                       Appellate Defender’s Office, of Chicago, for appellant.

                             Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                             Miles J. Keleher, and Jeremiah R. Davis, Assistant State’s Attorneys,
                             of counsel), for the People.


Panel                        JUSTICE STERBA1 delivered the judgment of the court, with opinion.
                             Justices Neville and Salone2 concurred in the judgment and opinion.



                                                 OPINION

¶1           Following a jury trial, defendant Eric Radcliff was found guilty of possession of a stolen
        motor vehicle and burglary, and judgment was entered only on the charge of possession of
        a stolen motor vehicle, on which he was sentenced to nine years in prison. On appeal,
        Radcliff contends that his conviction should be reversed and the cause remanded for a new
        trial because the judge was absent from the bench while defense counsel cross-examined a
        State witness and the court failed to question prospective jurors in compliance with Illinois
        Supreme Court Rule 431(b) (eff. May 1, 2007). Radcliff also challenges the fines and fees
        order entered against him. Because the circuit court’s admonitions to potential jurors did not
        comply with Rule 431(b), this court reversed Radcliff’s conviction and sentence and
        remanded for a new trial in a Rule 23 order filed August 5, 2010 (People v. Radcliff, No.
        1–09–1400 (2010) (unpublished order under Supreme Court Rule 23)). On January 26, 2011,
        the Illinois Supreme Court issued a supervisory order directing this court to vacate its order
        and reconsider in light of People v. Thompson, 238 Ill. 2d 598 (2010). People v. Radcliff, 239
        Ill. 2d 577, 578 (2011). For the reasons that follow, we reverse Radcliff’s conviction and
        sentence.

¶2                                           BACKGROUND


                1
                 Pursuant to Justice Gallagher’s retirement, Justice Sterba delivered the judgment of the
        court, with opinion, in the reconsideration of this case. Justice Sterba has reviewed all relevant
        materials, including the original Rule 23 order filed on August 5, 2010, and the supervisory order
        issued by our supreme court on January 26, 2011.
                2
                Pursuant to Justice O’Brien’s retirement, Justice Salone has participated in the
        reconsideration of this case. Justice Salone has reviewed all relevant materials, including the original
        Rule 23 order filed on August 5, 2010, and the supervisory order issued by our supreme court on
        January 26, 2011.

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¶3       At trial, Chicago police officer Michael Coughlin testified that on February 6, 2009, he
     was working with a group of officers as part of a covert auto theft team that had planned to
     place a bait vehicle in an area of high auto thefts to curb such thefts in that area. The bait
     vehicle was equipped with window and trunk sensors, internal cameras and microphones, a
     computer system that could lock the doors and ignition, and a GPS system. About 8:45 p.m.,
     Officer Coughlin drove the bait vehicle, a silver 2006 Mercury Milan, in an erratic manner
     to give the impression that he was inebriated. Officers Delcason and Salvador followed
     Officer Coughlin in a marked squad car, activated their lights and siren, and curbed the bait
     vehicle at the intersection of 63rd and Carpenter on the south side of Chicago.
¶4       At this point, Officer Coughlin saw approximately six individuals standing on a nearby
     corner, including Radcliff. Officers Dalcason and Salvador then pretended to arrest Officer
     Coughlin, who acted belligerent and caused a scene, and handcuffed him and took him into
     custody while leaving the bait vehicle on the street. When the officers left the vehicle, the
     keys were on the center console, the doors were unlocked, and the front driver and passenger
     side windows were halfway open. Officer Coughlin was then taken to the intersection of 61st
     and Morgan, where he joined Officer Sheetz.
¶5       Officer Don Cornelious testified that on the night of February 6, 2009, he was acting as
     the surveillance officer for the covert auto theft team. Officer Cornelious set up a point of
     surveillance at 63rd and Carpenter and remained in radio contact with the other team
     members. From his surveillance point, Officer Cornelious observed Radcliff standing across
     the street from the bait vehicle in a group of approximately six people. Radcliff walked to
     the vehicle, leaned inside, and fumbled around for about a minute before returning to the
     group. Shortly thereafter, Radcliff returned to the vehicle and unsuccessfully attempted to
     open the trunk, then returned to the group. About 15 minutes later, Radcliff entered and
     started the vehicle, then drove away.
¶6       During cross-examination, defense counsel questioned Officer Cornelious regarding the
     contents of the vehicle theft case report of the incident, and he stated that he could not
     remember “word for word” what was in the report. Defense counsel asked Officer Cornelious
     if anything would refresh his recollection, and he responded that the report would. At this
     point, the judge presiding over the trial said “[c]ounsel, excuse me, you can show him the
     report. One thing I have to take care of.” The judge then left the bench. While the judge was
     away, defense counsel asked Officer Cornelious if he remembered what the incident report
     he was using to refresh his recollection was about, and if it was from the date of the incident,
     and Officer Cornelious responded that it was from that day. Defense counsel then said
     “[w]hy don’t you take a look at it until the judge gets back.” Defense counsel resumed
     questioning Officer Cornelious after the judge returned to the bench.
¶7       Sergeant James Kolodziej testified that his role in the covert operation was to sit in an
     unmarked car with a laptop computer that controlled the bait vehicle. Once the bait vehicle
     was in position, Sergeant Kolodziej activated the system that would “arm” the vehicle. Once
     the vehicle was armed, messages would be sent to the computer about what was happening
     with the vehicle. Sergeant Kolodziej received a message that a door had been opened, but the
     vehicle remained in the same location. About 15 minutes later, he received another message
     that a door had been opened. He then received a “door closed” message, followed by an

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       “ignition on” message. Using the GPS tracking system, Sergeant Kolodziej saw that the bait
       vehicle turned north on Aberdeen. He notified Officers Coughlin, Sheetz, Dalcason and
       Salvador of the vehicle’s location. Once the officers communicated to Sergeant Kolodziej
       that they were in position to stop the vehicle, he sent a command to shut off the ignition and
       disable the vehicle. Radcliff was the only person in the vehicle, and Officer Coughlin placed
       him under arrest.
¶8         Radcliff testified that about 8:40 p.m. on February 6, 2009, he stopped at a liquor store
       at 62nd and Carpenter on his way from his sister’s house to his girlfriend’s house. Radcliff
       had planned on taking a bus from the liquor store to his girlfriend’s house and encountered
       his friend Kenny outside of the liquor store. Kenny asked Radcliff if he needed a ride
       somewhere and offered him the use of a car so long as he returned it. Kenny handed Radcliff
       a set of keys for a car parked across the street, and Radcliff entered the car and drove away
       until he was stopped by police. Radcliff explained that he had planned on returning the
       vehicle when he had finished using it.
¶9         The State called Officer Richard Salvador in rebuttal, who was part of the covert auto
       theft team, and corroborated the testimony of the other officers regarding the incident and
       Radcliff’s arrest. The State also recalled Officer Coughlin, who testified that he conducted
       an interview with Radcliff at the police station about 9:30 p.m. on February 6, 2009, during
       which Radcliff stated that Kenny told him that the police had locked up a white male and left
       the keys in the car, and then gave him the keys in exchange for a beer.
¶ 10       The jury found Radcliff guilty of possession of a stolen motor vehicle and burglary. The
       circuit court entered judgment only on the count of possession of a stolen motor vehicle and
       sentenced Radcliff to nine years in prison.

¶ 11                                         ANALYSIS
¶ 12       We first address Radcliff’s contention that this court must reverse his conviction and
       remand for a new trial because the circuit court’s admonitions to the prospective jurors did
       not comply with Rule 431(b). Our review of the interpretation of a supreme court rule is de
       novo. People v. Suarez, 224 Ill. 2d 37, 41-42 (2007).
¶ 13       In People v. Zehr, 103 Ill. 2d 472, 477 (1984), our supreme court held that it was
       essential to the qualification of jurors in a criminal case that they know that a defendant is
       presumed innocent, that he is not required to offer any evidence in his own behalf, that he
       must be proved guilty beyond a reasonable doubt, and that his failure to testify in his own
       behalf cannot be held against him. Rule 431(b) codifies the court’s holding in Zehr, and the
       version of the rule that was in effect when Radcliff’s trial occurred 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

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                 to testify when the defendant objects.
                     The court’s method of inquiry shall provide each juror an opportunity to respond
                 to specific questions concerning the principles set out in this section.” Ill. S. Ct. R.
                 431(b).
¶ 14        In this case, prior to swearing in the prospective jurors, the court admonished the group
       in the following manner:
                     “Under the law, a defendant is presumed to be innocent of the charges against
                 him, and this presumption remains with him throughout every stage of the trial and
                 during your deliberations on the verdict and is not overcome unless from all of the
                 evidence in this case you are convinced beyond a reasonable doubt that the defendant
                 is guilty.
                     The State has the burden of proving the guilt of the defendant beyond a
                 reasonable doubt, and this burden remains on the State throughout the entire trial.
                     The defendant is not required to prove his innocence, nor is he required to present
                 any evidence on his own behalf. He may rely on the presumption of innocence.”
¶ 15        The court further admonished the group:
                     “If [defendant] decides not to testify in his own behalf, you can’t use any
                 inference in that to say well, if he was innocent, why wouldn’t he testify in his own
                 behalf?
                     As soon as I say that, that thought is going to be in your head. But that’s not bad.
                 What you do, if it does pop out in your head, you just put it out of the way. You
                 cannot consider the fact that if [defendant] decides not to testify as any evidence of
                 anything against him. All right.
                     Does anybody have any qualms with that principle? If you do, raise your right
                 hand or raise any hand. I don’t care.
                     All right. Let the record reflect nobody has raised their hand.”
¶ 16        Radcliff asserts that although the court explained all four Zehr principles to the jurors,
       it failed to comply with Rule 431(b) because it did not ask the jurors whether they accepted
       and understood the first three principles. The State argues that Radcliff has forfeited this
       issue on appeal by failing to object to the court’s error. Issues raised on appeal are preserved
       for review by objecting during trial and filing a written posttrial motion raising the alleged
       error (People v. Enoch, 122 Ill. 2d 176, 186 (1988)), and when a defendant does not object
       at trial to a subsequently claimed error, a plain error analysis is appropriate. See People v.
       Herron, 215 Ill. 2d 167, 181-82 (2005) (plain error applies when defendant fails to object,
       while harmless error applies when a timely objection is made).
¶ 17        The plain error doctrine allows errors not previously challenged to be considered on
       appeal if either: (1) the evidence is so closely balanced that the error alone threatened to tip
       the scales of justice against the defendant; or (2) the error was so fundamental and of such
       magnitude that it affected the fairness of the 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); Herron, 215 Ill. 2d at 177. However, before conducting a plain error analysis we

                                                  -5-
       must determine whether an error in fact occurred. People v. Sims, 192 Ill. 2d 592, 621 (2000).
¶ 18        The circuit court asked potential jurors if they accepted the principle that a defendant’s
       choice not to testify could not be held against him. The court did not question prospective
       jurors about the remaining three principles. In Thompson, our supreme court noted that the
       circuit court did not ask prospective jurors whether they understood and accepted the
       principle that the defendant is not required to present any evidence on his own behalf.
       Thompson, 238 Ill. 2d at 607. The court stated that this failure, by itself, constituted
       noncompliance with the rule. Id. However, the court went on to say that although the circuit
       court asked prospective jurors whether they understood the presumption of innocence, it did
       not ask whether they accepted that principle. Thus, the court concluded, this was an
       additional violation of the rule. Id.
¶ 19        Applying this reasoning to the case at bar, we conclude that the circuit court erred in
       failing to question prospective jurors about three of the four principles. Under Thompson, the
       court further erred in only asking potential jurors whether they accepted the principle that a
       defendant’s choice not to testify cannot be held against him, without asking if they also
       understood that principle. Accordingly, we must now determine whether this was reversible
       error under the plain error doctrine.
¶ 20        In our original order, we held that the circuit court’s failure to ask potential jurors if they
       understood and accepted three of the four principles was reversible error. People v. Radcliff,
       No. 1–09–1400, slip op. at 9 (2010) (unpublished order under Supreme Court Rule 23). We
       determined that under the second prong of the plain error analysis, Radcliff was denied his
       substantial right to a fair and impartial jury by the court’s failure to comply with Rule 431(b).
       However, in Thompson, our supreme court observed that “[w]hile trial before a biased jury
       is structural error subject to automatic reversal, failure to comply with Rule 431(b) does not
       necessarily result in a biased jury.” Thompson, 238 Ill. 2d at 610. Because there was no
       evidence that the defendant in Thompson was tried by a biased jury, the court held that the
       circuit court’s error did not require reversal of the defendant’s conviction. Id. at 611.
¶ 21        Here, there is no evidence that the circuit court’s failure to comply with Rule 431(b)
       resulted in a biased jury, so the error is not reversible under the second prong. Radcliff did
       not argue that the evidence was closely balanced, nor does the record support such an
       argument. Thus, we conclude that the circuit court’s failure to comply with Rule 431(b) was
       not reversible error.
¶ 22        Because we originally reversed Radcliff’s conviction and remanded for a new trial, we
       did not address his argument that his conviction should be reversed because the judge left
       the bench during defense counsel’s cross-examination of Officer Cornelious. We now
       address this issue. Relying on People v. Vargas, 174 Ill. 2d 355, 371 (1996), Radcliff argues
       that judicial absence from a portion of a defendant’s felony trial is per se reversible error,
       because it is prejudicial to both a defendant’s right to a fair trial and to the integrity of the
       judicial system. Whether the judge’s absence deprived Radcliff of his due process right to
       a fair trial is a question of law which we review de novo. People v. Graham, 206 Ill. 2d 465,
       474 (2003).
¶ 23        The State argues that Radcliff has forfeited this issue because he did not object at trial


                                                   -6-
       or raise it in a posttrial motion. As discussed above, when a defendant does not object at trial
       to a subsequently claimed error, a plain error analysis is appropriate. See Herron, 215 Ill. 2d
       at 181-82. Under the second prong of the plain error doctrine, we will consider errors that
       are so fundamental and of such magnitude that the fairness of the trial and the integrity of the
       judicial process are called into question. Piatkowski, 225 Ill. 2d at 565; Herron, 215 Ill. 2d
       at 177. However, before conducting a plain error analysis we must first determine whether
       an error in fact occurred. Sims, 192 Ill. 2d at 621.
¶ 24        The State contends that if any error occurred, it was injected into the proceedings by
       defense counsel. The State claims that because the court specifically instructed counsel only
       to show the witness the report, defense counsel injected the error by continuing to question
       the witness in the judge’s absence. Alternatively, the State argues that if any error occurred,
       it did not prejudice Radcliff in any manner. In Vargas, our supreme court determined that an
       error occurred when the presiding trial judge was completely absent from the courtroom
       during the cross-examination of a witness at a felony jury trial. Vargas, 174 Ill. 2d at 357.
       Here, the judge was completely absent from the proceedings during part of the cross-
       examination of a witness; thus, we conclude that an error occurred. We must next consider
       whether this error is reversible.
¶ 25        As an initial matter, we reject the State’s contention that the court gave specific
       instructions and defense counsel injected the error into the proceedings by violating those
       instructions. During cross-examination of a witness, defense counsel asked the witness
       whether anything would refresh his recollection of the contents of the vehicle theft report
       related to the incident. The witness responded, “The report.” The judge then interrupted the
       proceedings. He said: “Counsel, excuse me, you can show him the report. One thing I have
       to take care of.” He then left the bench. In his absence, the following exchange occurred:
                     “Q. I’m showing you Defendant’s Exhibit 1 previously shown to counsel. Officer,
                do you remember what this report is about? Is that the incident report from that day?
                     A. Yes. That’s from that day.
                     Q. Why don’t you take a look at it until the judge gets back.”
¶ 26        Contrary to the State’s assertion, defense counsel was following the court’s instructions.
       The court told defense counsel to show the witness the report. Defense counsel asked two
       questions to lay the foundation before showing the witness the report, and then deferred all
       other questioning until the judge returned to the bench. Moreover, the court confirmed that
       defense counsel complied with its order at a later point in the proceedings. During jury
       deliberations, a note was sent out with a request to see a portion of the transcripts from the
       trial. While the court and the attorneys were discussing the request, the following exchange
       occurred:
                     “MR. VROUSTOURIS [Assistant State’s Attorney]: Next one is page 82, Judge.
                There is, I’d just [sic] to bring to the Court’s attention on line 8 the record reflects
                that your Honor left the courtroom and during that time there was a question and
                answer and a second question in your absence, Judge. We don’t have an objection to
                that, but I just want to bring that to the Court’s attention that the Court is aware, there
                was a question and answer in your absence.

                                                   -7-
                      THE COURT: *** All right. The question was, ‘Was there anything that could
                 refresh your recollection? Answer: The report. And then it’s, The Court: Counsel,
                 excuse me, you can show him the report. One thing I have to take care of.’ And then
                 Mr. Simmons [defense counsel] went on his own, but the questions are, and it’s
                 nothing but complying with the order is, ‘I’m showing you Defendant’s Exhibit 1
                 previously shown to counsel. Also do you remember what this report is about? Is this
                 the incident report from that day? Answer: Yes, from that day. Question: Why don’t
                 you take a look at it until the Judge gets back.’ And then the next salutation is the
                 Judge returns.
                      So that’s just compliance with my order that he could show him the report.
                 Nobody has made any objections about this, correct?
                      MR. VROUSTOURIS: That’s correct, Judge.”
¶ 27        Thus, we conclude that defense counsel did not violate an order of the court and inject
       an error into the proceedings. As previously stated, the error occurred when the presiding
       trial judge completely absented himself from the courtroom during part of the cross-
       examination of a witness. We now turn to the State’s alternative argument that the error did
       not prejudice Radcliff in any manner.
¶ 28        In Vargas, our supreme court considered the issue of whether a presiding trial judge’s
       complete absence from the courtroom during the cross-examination of a witness at a felony
       jury trial constitutes per se reversible error or whether prejudice to the defendant must be
       shown. Id. In its analysis, the court explained that two important policy concerns supported
       its conclusion that the judge’s absence from the bench was reviewable under the second
       prong of the plain error analysis. Id. at 364. “First, a judge’s active presence on the bench
       during a criminal jury trial is an essential safeguard which aids in providing a defendant with
       a fair trial. Second, *** a judge’s absence from the bench might unduly influence the attitude
       of jurors so as to deny defendant an impartial trial.” Id. The court concluded that total
       judicial absence from a portion of a felony trial is per se reversible because such error is
       inherently prejudicial to both the defendant’s right to a fair trial and the integrity of the
       judicial process. Id. at 366. The court further explained that “[b]ecause prejudice is inherent
       when felony trials continue in the absence of the presiding [trial] judge, we regard any
       showing of demonstrable prejudice, or lack thereof, to defendant either resulting from, or
       during, the judge’s absence as immaterial to the disposition of this issue.” Id. at 371.
¶ 29        Moreover, the court observed that a trial judge’s presence in the courtroom is necessary
       because without it, “there is no judicial authority which can observe, cure, and deter
       objectionable conduct which may have the effect of prejudicing the defendant in the minds
       of the jury.” Id. at 364. The court went on to discuss a case in which it noted that the circuit
       court has a duty to sua sponte suppress any attempt on the part of counsel to drag irrelevant
       matters into a case. Id. at 364-65 (discussing People v. Chrfrikas, 295 Ill. 222, 228-29
       (1920)). We note that here, defense counsel did not lay the proper foundation to refresh the
       officer’s recollection and also that, in this failed attempt to lay such a foundation, asked a
       compound question; something that could have been corrected if the judge had been present.
¶ 30        We recognize that in the case at bar, no substantive questions were asked of the witness


                                                 -8-
       during the judge’s brief absence. However, our supreme court established a bright line rule
       in Vargas and explained that “only a rule which requires reversal when a judge totally
       absents himself or herself from the proceedings will effectively remove any incentive which
       might otherwise exist for the judge to disregard the significant interests involved in a
       criminal trial.” Id. at 372. The court further explained that “[a] presiding judge’s supervision
       over every stage of the proceedings precludes speculation that jurors may perceive evidence
       received in the judge’s absence as less significant, and impresses upon jurors the importance
       of the interests of the State and the defendant.” Id. Thus, because the court did not call a
       recess and the cross-examination of a witness continued in the complete absence of the
       presiding trial judge, we hold that Radcliff’s right to a fair trial was compromised.
¶ 31       Accordingly, we reverse Radcliff’s conviction and sentence and remand for a new trial.
       Because we are reversing Radcliff’s conviction, his challenges to the fines and fees order
       entered against him have been rendered moot.
¶ 32       Reversed and remanded.




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