                           ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                           People v. Franklin, 2012 IL App (3d) 100618




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    LEON A. FRANKLIN, Defendant-Appellant.



District & No.             Third District
                           Docket No. 3-10-0618


Filed                      June 7, 2012


Held                       Defendant’s convictions for aggravated criminal sexual abuse were
(Note: This syllabus       reversed where the trial court’s instruction to potential jurors that
constitutes no part of     “beyond a reasonable doubt” is “what each of you individually and
the opinion of the court   collectively, as 12 of you, believe is beyond a reasonable doubt” violated
but has been prepared      defendant’s constitutional rights, since judges in Illinois courts are
by the Reporter of         prohibited from defining “reasonable doubt,” the trial court’s error was
Decisions for the          structural error and was compounded when the prosecutor reminded the
convenience of the         jury of the trial court’s statement during closing argument, there was a
reader.)
                           likelihood the jurors understood a conviction could be based on proof less
                           than a reasonable doubt, and reversal was required under the plain error
                           doctrine.


Decision Under             Appeal from the Circuit Court of Will County, No. 08-CF-719; the Hon.
Review                     Robert P. Livas, Judge, presiding.



Judgment                   Reversed and remanded.
Counsel on                 Bryon M. Reina (argued), of State Appellate Defender’s Office, of
Appeal                     Chicago, for appellant.

                           James Glasgow, State’s Attorney, of Joliet (Terry A. Mertel and Robert
                           M. Hansen (argued), both of State’s Attorneys Appellate Prosecutor’s
                           Office, of counsel), for the People.


Panel                      JUSTICE LYTTON delivered the judgment of the court, with opinion.
                           Justice O’Brien concurred in the judgment and opinion.
                           Justice Carter concurred in part and dissented in part, with opinion.



                                             OPINION

¶1          Defendant, Leon A. Franklin, was convicted of two counts of aggravated criminal sexual
        abuse (720 ILCS 5/12-16(d) (West 2006)) and sentenced to two consecutive five-year terms
        of imprisonment. On appeal, defendant argues that (1) his due process rights were violated
        when the trial court instructed jurors that it was for them to decide the meaning of reasonable
        doubt; (2) he was denied a fair trial by the prosecutor’s statements during closing argument
        that the State’s evidence was “uncontradicted”; (3) the trial court did not adequately inquire
        into his pro se posttrial claim of ineffective assistance of counsel; and (4) the trial court
        abused its discretion in sentencing him to consecutive prison terms. We reverse, finding that
        the trial court’s instruction to the jury regarding reasonable doubt violated defendant’s
        constitutional rights.

¶2                                         BACKGROUND
¶3           Defendant was charged with two counts of aggravated criminal sexual abuse against a
        minor, S.R., for placing his penis in S.R.’s vagina in December 2007 and on February 23,
        2008.
¶4           During jury selection, the trial judge told the potential jurors:
             “Beyond a reasonable doubt means beyond a reasonable doubt. It’s what each of you
             individually and collectively, as 12 of you, believe is beyond a reasonable doubt.”
        Thereafter, 12 jurors and 2 alternates were chosen, and defendant’s trial began.
¶5           S.R. testified that on February 23, 2008, she was 16 years old. She was living in an
        apartment with Sonya Johnson, Johnson’s four-year-old daughter, and defendant. Johnson
        is S.R.’s father’s ex-girlfriend. Defendant is a friend of her father’s, whom S.R. has known
        all her life.
¶6          According to S.R., on February 23, 2008, Johnson made plans to go out with her friend,
        Adrian Brown. Defendant was supposed to take S.R. and Johnson and Brown’s children

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       somewhere while Johnson and Brown were gone. After Johnson and Brown left Johnson’s
       apartment, the children fell asleep in S.R.’s bedroom. While the children were resting, S.R.
       went into Johnson’s bedroom to clean it. When S.R. was cleaning the room, defendant came
       to the doorway with his pants on the floor and a condom on his penis. Defendant walked
       toward her and put his penis inside her vagina. Defendant had sexual intercourse with S.R.
       for approximately 10 minutes until Johnson and Brown returned.
¶7          When Johnson and Brown came home, defendant got up, and S.R. went into her
       bedroom. As defendant was putting on his pants, Brown opened the door to Johnson’s
       bedroom. According to S.R., Johnson and Brown then started yelling and screaming, and
       defendant got his coat and left. Later, the police came, and S.R. told the police what
       happened. Johnson took S.R. to the hospital.
¶8          S.R. testified that defendant also had sexual intercourse with her in December 2007. On
       that occasion, she was lying on the couch in the living room. Defendant laid down behind
       her, and, according to S.R., “[h]e just put his penis in my vagina.” The intercourse lasted
       about five minutes.
¶9          About a month earlier, S.R. woke up to find defendant laying behind her in her bed.
       Defendant said that he wanted to hold her. S.R. said, “no.” Defendant then “took out his
       penis” and rubbed it on her thigh. She told defendant that she was going to scream if he did
       not leave. Defendant got up and left.
¶ 10        Sonya Johnson testified that she met S.R.’s father, Lucius R., in 2006, and dated him a
       little over a year. When they broke up, in December 2007, Lucius asked Johnson to take care
       of S.R. Johnson agreed, and S.R. began living with Johnson.
¶ 11        On February 23, 2008, Johnson and Brown made plans to have defendant take S.R. and
       their children on an outing. Brown gave defendant $100 and the keys to her car. Johnson and
       Brown left first, ran some errands and returned to Johnson’s home. When they came back,
       they were surprised to see that Brown’s car was still there. When they entered the apartment,
       Brown walked past Johnson toward Johnson’s bedroom. Johnson then heard Brown say,
       “Oh, my God; oh, my God; oh, my God.” Johnson walked toward her bedroom and saw
       defendant standing at the foot of her bed pulling up his underwear. Johnson noticed that the
       room had a musky odor and that her comforter “was messed up,” like someone had been in
       her bed.
¶ 12        Johnson asked defendant, “[H]ow could you do this to me; why would you do it; what
       are you thinking?” Defendant responded, “I don’t know; it just happened; I didn’t mean for
       it to happen.” Johnson then went to the back of the apartment to retrieve a baseball bat.
       When she returned, defendant was leaving. Johnson sat S.R. down and asked her what
       happened. S.R. “sat there real quiet.” Johnson called Lucius. After Johnson reached Lucius,
       she called the police. The police escorted Johnson and S.R. to the hospital “[t]o have a rape
       kit done.” A rape kit was not done because no parent was present at the hospital to consent.
¶ 13        Adrian Brown testified that she and Johnson left Johnson’s apartment in the afternoon
       on February 23, 2008. After being gone for an hour-and-a-half to two hours, they decided to
       return to the apartment. Brown entered the apartment first and saw S.R. coming out of
       Johnson’s bedroom. Brown pushed open the door to Johnson’s bedroom and saw defendant

                                                -3-
       pulling up his underwear. His pants were around his ankles. Johnson then went into her
       bedroom and started yelling at defendant. Brown told defendant that he needed to leave.
       Brown and Johnson contacted Lucius and called the police.
¶ 14       The State introduced into evidence a copy of defendant’s birth certificate, showing his
       date of birth to be April 17, 1972, making him 35 years old on February 23, 2008. Defendant
       did not testify or present any witnesses on his behalf.
¶ 15       In closing argument, the prosecutor stated:
               “Factually, its uncontradicted that these–those facts occurred. That he was in Ms.
           Johnson’s bedroom when she wasn’t home, when Ms. Brown wasn’t there. When the
           only two in there were [S.R.] in the bedroom with the defendant, Leon Franklin. It’s
           uncontradicted.
               It’s uncontradicted that he pulled down his pants and he inserted his penis in her
           vagina. That is uncontradicted evidence. It’s uncontradicted that she’s 16. It’s
           uncontradicted he’s 35. It’s uncontradicted that there’s a 19-year age difference.”
       The prosecutor reminded jurors in rebuttal closing argument:
           “Judge Livas gave you the definition of reasonable doubt. Reasonable doubt is what you
           believe to be reasonable doubt. You decide what reasonable doubt is. Not [defense
           counsel], not the State, you decide.”
¶ 16       The jury found defendant guilty of both counts of aggravated criminal sexual abuse.
       Thereafter, defendant filed a pro se motion for a new trial, alleging, in part, that his attorney
       was ineffective for not presenting certain testimony. The court held a hearing to determine
       if defendants’s pro se claims warranted appointment of counsel. When asked what evidence
       his attorney failed to present, defendant said that his attorney did not call his cousin, Portia
       Sturdevant, to testify and never interviewed two other potential witnesses. The court asked
       defense counsel about Sturdevant. Defense counsel explained that he interviewed her but
       chose not to call her to testify because he thought her testimony would hurt defendant’s case.
       The trial court did not question defense counsel about the other two witnesses defendant
       mentioned. The court found no basis to appoint defendant new counsel to argue his motion.
¶ 17       In sentencing defendant, the court considered defendant’s criminal history, which
       included four prior felonies. The court found that the public needed to be protected from
       defendant because he committed his crimes while holding a position of power over S.R. The
       court sentenced defendant to two consecutive five-year prison terms.

¶ 18                                         ANALYSIS
¶ 19                                               I
¶ 20       Defendant first argues that his due process rights were violated when the trial court
       instructed the potential jurors that “beyond a reasonable doubt” is “what each of you
       individually and collectively, as 12 of you, believe is beyond a reasonable doubt.” He
       contends that the prosecutor compounded the error by reminding jurors in closing argument
       of the court’s statement. The State responds that the trial court’s instruction was not error,
       or, alternatively, that defendant forfeited the error by failing to object and raise the issue in

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       his posttrial motion.
¶ 21        Generally, an issue concerning the propriety of a jury instruction is reviewed under an
       abuse of discretion standard; however, review is de novo when the issue is whether the
       applicable law was correctly conveyed in the jury instruction. People v. Turman, 2011 IL
       App (1st) 091019, ¶ 18.
¶ 22        In order to preserve an issue for appeal, a defendant must object to the alleged error at
       trial and include it in a posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988). Claims
       that are not properly preserved may be reviewed only for plain error. People v. McGhee,
       2012 IL App (1st) 093404, ¶ 18. An error is reversible under the plain error doctrine when
       (1) a clear or obvious error occurred and the evidence is so closely balanced that the error
       threatened to tip the scales of justice against the defendant, 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.
       Id. The supreme court has equated the second prong of the plain error analysis with structural
       errors. Id. at ¶ 20 (citing People v. Thompson, 238 Ill. 2d 598, 613-14 (2010)). An error is
       structural if it “necessarily renders a criminal trial fundamentally unfair or an unreliable
       means of determining guilt or innocence.” Thompson, 238 Ill. 2d at 609.
¶ 23        Our supreme court has repeatedly identified a “defective reasonable doubt instruction”
       as a structural error. See People v. Washington, 2012 IL 110283, ¶ 59; Thompson, 238 Ill.
       2d at 609; People v. Averett, 237 Ill. 2d 1, 13 (2010). The United States Supreme Court
       agrees. See Sullivan v. Louisiana, 508 U.S. 275, 280-82 (1993). In Sullivan, the United States
       Supreme Court held that a constitutionally deficient reasonable doubt instruction
       “unquestionably qualifies ‘as a structural error’ ” that requires reversal. Id. A constitutionally
       deficient reasonable doubt instruction is one that does not correctly convey the concept of
       reasonable doubt. See Victor v. Nebraska, 511 U.S. 1, 5 (1994). A defendant’s due process
       rights are violated if there is a reasonable likelihood that the jurors understood the instruction
       to allow a conviction based on proof less than a reasonable doubt. See id. at 5, 22-23.
¶ 24        The United States Constitution does not prohibit courts from defining reasonable doubt.
       Victor, 511 U.S. at 5. However, judges in Illinois courts are prohibited from doing so. See
       People v. Failor, 271 Ill. App. 3d 968, 971 (1995) (despite Supreme Court’s decisions in
       Sullivan and Victor, Illinois law is “clear” that reasonable doubt should not be defined). “The
       law in Illinois is clear that neither the court nor counsel should attempt to define the
       reasonable doubt standard for the jury.” People v. Speight, 153 Ill. 2d 365, 374 (1992) (citing
       People v. Cagle, 41 Ill. 2d 528, 536 (1969), and People v. Malmenato, 14 Ill. 2d 52, 61
       (1958)). Following our supreme court’s unambiguous ruling in Malmenato and subsequent
       cases, the committee notes to Illinois Pattern Jury Instructions, Criminal, No. 2.05
       “recommend[ ] that no instruction be given defining the term ‘reasonable doubt.’ ” Illinois
       Pattern Jury Instructions, Criminal, No. 2.05, Committee Note, at 78 (4th ed. 2000) (citing
       Malmenato, 14 Ill. 2d at 61); Failor, 271 Ill. App. 3d at 970.
¶ 25        A trial court’s attempt to explain reasonable doubt is improper because there is no better
       definition of reasonable doubt than the words themselves. People v. Jenkins, 89 Ill. App. 3d
       395, 398 (1980). “[T]he concept of reasonable doubt needs no explanation.” Id. When a trial


                                                  -5-
       court improperly instructs a jury regarding reasonable doubt, the prejudice to the defendant
       is compounded when the prosecutor refers to the instruction in closing argument. See id.
¶ 26       The First District recently held that a trial court committed reversible error when it
       instructed jurors that it was for them “to collectively determine what reasonable doubt is.”
       (Internal quotation marks omitted.) Turman, 2011 IL App (1st) 091019, ¶¶ 19, 27. The court
       held:
           “By instructing the jurors that they should collectively determine what reasonable doubt
           was, the court allowed the jury to use a standard that in all likelihood was below the
           threshold of a reasonable doubt standard. *** The effort by the trial court in this case can
           be construed as an attempt to define that which the Illinois Supreme Court has said
           cannot be defined in this way.” Id. ¶ 25.
       The court found that the erroneous instruction amounted to plain error under both prongs of
       the plain error rule, explaining that “[t]he jury may have used a lesser standard of doubt than
       reasonable doubt since they were to collectively determine what the term meant.” Id. ¶ 27.
       The court concluded that the error was so serious that it affected the fairness of the
       defendant’s trial and his right to due process, thereby challenging the integrity of the judicial
       process. Id.
¶ 27       Here, the trial court’s instruction to jurors that reasonable doubt is “what each of you
       individually and collectively, as 12 of you, believe is beyond a reasonable doubt” is nearly
       identical to the instruction found to be erroneous in Turman. Such an instruction is improper
       because it contravenes the Illinois Supreme Court’s mandate that trial courts not define
       reasonable doubt for the jury. See Speight, 153 Ill. 2d at 374; Failor, 271 Ill. App. 3d at 970.
       The error was compounded when the prosecutor reminded the jury of the trial court’s
       statement in closing argument. See Jenkins, 89 Ill. App. 3d at 398.
¶ 28       We hold that the trial court’s instruction in this case was constitutionally deficient
       because, by telling jurors that it was for them to collectively determine what reasonable doubt
       meant, there is a reasonable likelihood that the jurors understood the instruction to allow a
       conviction based on proof less than a reasonable doubt. See Turman, 2011 IL App (1st)
       091019, ¶¶ 25, 27; Victor, 511 U.S. at 5, 22-23. Since the instruction was constitutionally
       deficient, it is a structural error that requires reversal. See Sullivan, 508 U.S. at 280-82. Thus,
       we reverse and remand for a new trial.

¶ 29                                             II
¶ 30       Because we reverse and remand for a new trial on the first issue presented by defendant,
       we need not discuss the remaining issues at length. Nevertheless, we will briefly address
       them since they may recur upon retrial.
¶ 31       First, we reject defendant’s contention that he was denied a fair trial by the prosecutor’s
       repeated statements during closing argument that the evidence was “uncontradicted.” The
       prosecutor’s comments were not intended to focus the jury’s attention on defendant’s failure
       to testify; thus, they were not improper. See People v. Keene, 169 Ill. 2d 1, 21-23 (1995).
¶ 32       Next, we agree with defendant’s contention that the trial court did not adequately address


                                                  -6-
       his claims of ineffective assistance of counsel. At the hearing on defendant’s pro se motion,
       the trial court questioned defense counsel about not calling Sturdevant to testify; however,
       the trial court made no inquiry into defendant’s claim that defense counsel allegedly failed
       to interview two other witnesses. If we had not reversed and remanded on the instruction
       issue in section I, we would have remanded this case for further inquiry into defendant’s pro
       se allegations of ineffective assistance. See People v. Moore, 207 Ill. 2d 68, 79 (2003).
¶ 33       Finally, the trial court did not abuse its discretion in sentencing defendant to consecutive
       prison terms based on the seriousness of defendant’s crimes, defendant’s extensive criminal
       history, and the trial court’s belief that consecutive sentences were necessary to protect the
       public from defendant’s further criminal conduct. See People v. Couch, 387 Ill. App. 3d 437,
       445-46 (2008).

¶ 34                                      CONCLUSION
¶ 35       The order of the circuit court of Will County is reversed and the cause is remanded for
       further proceedings consistent with this decision.

¶ 36      Reversed and remanded.

¶ 37       JUSTICE CARTER, concurring in part and dissenting in part.
¶ 38       I concur with the majority on all of the issues presented on appeal, except for the first
       one. On that issue, regarding the trial court’s reasonable doubt instruction, I would find that
       the trial court’s instruction was not erroneous. Therefore, I would affirm defendant’s
       conviction and sentence and would remand this case for a further hearing on defendant’s pro
       se posttrial claim of ineffective assistance of counsel.
¶ 39       In my opinion, to place the reasonable-doubt-instruction issue into context, additional
       facts must be provided. Defendant’s case proceeded to a jury trial in September of 2009.
       During the jury selection process, the trial judge made numerous comments to the jury pool.
       Of relevance to this appeal, the trial judge: (1) read the charging instrument to the jury pool
       and explained that the charging instrument was not evidence against defendant and did not
       create an inference of guilt; (2) told the jury pool that they would be the judges of the facts
       in this case and that they would determine whether the witnesses were telling the truth and
       the amount of weight to be given to the testimony; (3) told the jury pool that they had to keep
       open minds and could not begin to deliberate on a verdict until they heard all of the evidence,
       arguments, and instructions on the law; (4) told the jury pool that their verdict had to be
       based upon the law and the evidence in this case and not upon sympathy, bias, or prejudice;
       (5) asked the members of the jury pool individually whether they would allow feelings of
       sympathy, bias, or prejudice to affect their ability to be impartial; (6) asked the members of
       the jury pool individually if they would listen to all of the evidence, the arguments of the
       attorneys, and the trial judge’s instructions on the law before making up their minds; (7)
       asked the members of the jury pool individually if they would follow the law as it was given
       to them, without regard to their own personal feelings about it; (8) asked the members of the


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       jury pool individually if they would consider the evidence in light of their own observations
       and experiences in life; (9) asked the members of the jury pool individually if they
       understood and accepted the propositions that a person accused of a crime was presumed to
       be innocent of the charge against him and that the presumption of innocence stayed with that
       person throughout trial and was not overcome unless the evidence led the jury to believe that
       the State had proven the person guilty beyond a reasonable doubt; (10) asked the members
       of the jury pool individually if they understood and accepted the propositions that the State
       had the burden of proving the defendant’s guilt beyond a reasonable doubt, that the defendant
       did not have to prove his innocence, and that if the defendant chose not to, he did not have
       to present any evidence in his own behalf; (11) asked the members of the jury pool
       individually if they understood and accepted the propositions that the defendant did not have
       to testify, that they could not consider the defendant’s decision not to testify in any way in
       arriving at their verdict, and that if defendant chose to testify, they were to judge his
       testimony the same way that they would judge the testimony of any other witness; (12) asked
       the members of the jury pool individually if they could judge the testimony of a police officer
       the same way as they would judge the testimony of any other witness in this case; (13) asked
       the members of the jury pool individually if they would sign a guilty verdict if, after they
       heard all of the evidence, arguments, and instructions on the law in the case, they believed
       the State had proven its case beyond a reasonable doubt; (14) asked the members of the jury
       pool individually if they would sign a not-guilty verdict if, after they heard all of the
       evidence, argument, and instructions on the law in this case, they did not believe the State
       had proven its case beyond a reasonable doubt; (15) told the jury pool that the constitutions
       of the United States and of Illinois provided that every person was entitled to a fair and
       impartial trial; and (16) asked the members of the jury pool individually whether they could
       give both sides a fair and objective trial.
¶ 40       At one point during the jury selection process, prior to many of the comments listed
       above, the trial judge told to the jury pool about reasonable doubt. The trial judge stated to
       the jury pool:
                “I will guarantee that every one of you knows what the burden of proof is in a
           criminal trial just by being alive that long. Beyond a reasonable doubt. The definition of
           beyond a reasonable doubt–you are going to love of [sic] this. Whole reason I went to
           law school is just to find out what those four words meant. Beyond a reasonable doubt
           means beyond a reasonable doubt. It’s what each of you individually and collectively, as
           12 of you, believe is beyond a reasonable doubt. The point I bring that up is this. Most
           of you have heard of that burden. What you don’t know, because of that burden, is when
           we begin to select this jury, the State will go first. When the selection process is over, we
           have got the jurors assembled, what’s the first part of any trial called?
                Opening statements.
                The State will go first. Presentation of evidence, the State will go first. When all the
           evidence has been complete[d] and what’s called closing arguments, which is the end of
           trial, the State will go first, and they will go last. They’ll speak to you twice at the end
           of trial. The reason for that, they have got the burden beyond a reasonable doubt.”


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¶ 41        During his initial closing argument, the prosecutor pointed out repeatedly that certain
       aspects of the State’s evidence were uncontradicted. The prosecutor commented to the jury
       that the State’s burden of proof was beyond a reasonable doubt and told the jury that the
       State acknowledged that standard. Defense counsel, in his closing argument, told the jury that
       the prosecution had not proven beyond a reasonable doubt that the defendant committed the
       offenses and stated to the jury that he would explain to it why the prosecution had utterly
       failed to sustain its burden of proof. Defense counsel criticized the prosecutor’s repeated use
       of the word “uncontradicted” and reminded the jury that defendant was presumed innocent
       and that defendant did not have to prove anything or present any evidence whatsoever.
       Defense counsel commented upon the lack of any physical evidence and faulted the
       prosecution for not insisting that the items in police possession be tested. In addition, defense
       counsel pointed out certain testimony from the State’s witnesses that he believed to be
       problematic or inconsistent. Defense counsel also told the jury that the State had the burden
       to prove defendant guilty of the offenses beyond a reasonable doubt, which was the highest
       burden of proof available under the law. Defense counsel commented that it would be
       difficult for the jury to sign a guilty verdict in this case because there was reasonable doubt.
       In rebuttal closing argument, the prosecutor reminded the jury of the trial judge’s comment
       during jury selection, telling the jurors it was for them to decide what reasonable doubt was
       and not for the State or the defense to decide.
¶ 42        After closing arguments were completed, the trial court instructed the jury on the law. Of
       relevance to this appeal, the jurors were instructed that: (1) the law that applied in this case
       was stated in the instructions and that it was their duty to follow all of the instructions; (2)
       it was their duty to determine the facts and to do so only from the evidence in this case and
       to decide this case by applying the law to the facts; (3) they should not be influenced by
       sympathy or prejudice or by a person’s race, color, religion, or national ancestry; (4) they
       should consider all of the evidence in light of their own observations and experiences in life;
       (5) the trial judge was not trying to indicate any opinion as to the facts or as to what the
       verdict should be by the instructions that he was giving or by any remark that he had made;
       (6) they were the judges of the believability of the witnesses and of the weight to be given
       to the testimony of the witnesses, and that in considering the testimony of the witnesses, they
       could take into account the witness’s age, any interest, bias, or prejudice the witness may
       have had, and the reasonableness of the witness’s testimony considered in the light of all of
       the evidence in this case; (7) opening statements and closing arguments were not evidence
       and that any statement or argument made by the attorneys that was not based upon the
       evidence should be disregarded; (8) the charging document was not any evidence against
       defendant; (9) defendant was presumed to be innocent of the charges against him and that
       the presumption remained with defendant throughout every stage of the trial and throughout
       their deliberations and was not overcome unless from all the evidence in this case, they were
       convinced beyond a reasonable doubt that defendant was guilty; (10) the State had the burden
       of proving defendant guilty beyond a reasonable doubt and that the burden remained on the
       State throughout the case; (11) defendant was not required to prove his innocence; (12) the
       fact that defendant did not testify could not be considered by them in any way in arriving at
       their verdict; (13) the State had to prove certain specific propositions to sustain the charges


                                                 -9-
       against defendant; (14) they should find defendant guilty if they found from their
       consideration of all of the evidence that each of the propositions had been proven beyond a
       reasonable doubt; and (15) they should find defendant not guilty if they found from their
       consideration of all of the evidence that any one of the propositions had not been proven
       beyond a reasonable doubt. When the instructions were completed, the jury began
       deliberations. The jury subsequently found defendant guilty of both counts of aggravated
       criminal sexual abuse.
¶ 43        As noted in the majority opinion, defendant argues on appeal that he was denied his right
       to due process and a fair trial when the trial judge told the jury pool during the jury selection
       process that the term “reasonable doubt” was for the jury to define.1 Defendant asserts that
       the instruction was erroneous and that it ensured that the jury would apply a lesser standard
       than beyond a reasonable doubt in finding defendant guilty. Defendant asserts further that
       the error was compounded when the prosecutor reminded the jurors of the judge’s instruction
       during rebuttal closing argument. Based upon this error alone, defendant asks that this court
       reverse his convictions and remand this case for a new trial. Defendant recognizes that this
       error was not properly preserved for appellate review in that it was neither objected to at trial
       nor raised in a posttrial motion (see People v. Allen, 222 Ill. 2d 340, 350 (2006)), but he asks
       this court to reach the merits of this issue, nevertheless, under the second prong of the plain
       error doctrine or because trial counsel was ineffective in failing to preserve this issue.
¶ 44        The State asserts first that the issue has been forfeited and should not be reached either
       as a matter of second-prong plain error or because of ineffectiveness of counsel.
       Alternatively, the State asserts that the trial court’s instruction and the prosecutor’s comment
       in closing argument on the issue of reasonable doubt did not constitute reversible error. Thus,
       the State argues that this court should affirm the judgment of the trial court.
¶ 45        The plain-error doctrine is a limited and narrow exception to the forfeiture rule that
       allows a reviewing court to consider unpreserved error when:
            “(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).
       See also People v. Walker, 232 Ill. 2d 113, 124 (2009); People v. Herron, 215 Ill. 2d 167,
       177-87 (2005); Ill. S. Ct. R. 615(a). Under either prong of the plain-error doctrine, the burden
       of persuasion is on the defendant. Walker, 232 Ill. 2d at 124. If the defendant fails to satisfy
       that burden, the forfeiture of the issue must be honored. Walker, 232 Ill. 2d at 124. The first
       step in plain-error analysis is to determine whether an error occurred. Walker, 232 Ill. 2d at
       124. To do so, a reviewing court must conduct a substantive review of the issue. Walker, 232
       Ill. 2d at 125.


              1
                On appeal, defendant does not make any distinction between his due process rights under
       the United States Constitution and his due process rights under the Illinois Constitution.

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¶ 46        Although the propriety of jury instructions is generally reviewed on appeal for an abuse
       of discretion, when the issue is whether the applicable law was correctly conveyed by the
       instructions to the jury, the appropriate standard of review on appeal is de novo. Barth v.
       State Farm Fire & Casualty Co., 228 Ill. 2d 163, 170 (2008). “The due process clause of the
       fourteenth amendment protects a defendant from conviction ‘except upon proof beyond a
       reasonable doubt of every fact necessary to constitute the crime with which he is charged.’ ”
       People v. Green, 225 Ill. 2d 612, 622 (2007) (quoting In re Winship, 397 U.S. 358, 364
       (1970)). To ensure a fair trial consistent with due process, “the trial court must instruct the
       jury on such basic matters as the elements of the offense, the presumption of innocence, and
       the burden of proof.” Green, 225 Ill. 2d at 622. “A written instruction that informs the jury
       of the presumption of defendant’s innocence and the State’s burden of proving defendant
       guilty beyond a reasonable doubt is a time-honored and effective method of protecting a
       defendant’s right to a fair trial, which is guaranteed by the due process clause of the
       fourteenth amendment.” People v. Layhew, 139 Ill. 2d 476, 486 (1990).
¶ 47        As to the issue of instructions regarding reasonable doubt, the long-standing rule in
       Illinois was that the term “reasonable doubt” needed no further elaboration and that the trial
       court and counsel should not attempt to define reasonable doubt for the jury. See, e.g.,
       Malmenato, 14 Ill. 2d at 61; Speight, 153 Ill. 2d at 374. Applying that long-standing rule,
       Illinois courts had generally found that an attempt to define reasonable doubt was error,
       although in some instances, the courts went on to find that the error was not prejudicial to
       the defendant. See, e.g., Malmenato, 14 Ill. 2d at 61; Speight, 153 Ill. 2d at 374-75.
¶ 48        However, when considering the due process implications of an instruction that defined
       reasonable doubt to the jury, the United States Supreme Court stated in Victor v. Nebraska:
                 “The beyond a reasonable doubt standard is a requirement of due process, but the
            Constitution neither prohibits trial courts from defining reasonable doubt nor requires
            them to do so as a matter of course. [Citation.] Indeed, so long as the court instructs the
            jury on the necessity that the defendant’s guilt be proved beyond a reasonable doubt,
            [citation], the Constitution does not require that any particular form of words be used in
            advising the jury of the government’s burden of proof. [Citation.] Rather, ‘taken as a
            whole, the instructions [must] correctly conve[y] the concept of reasonable doubt to the
            jury.’ ” Victor, 511 U.S. at 5 (quoting Holland v. United States, 348 U.S. 121, 140
            (1954)).
       Thus, the United States Supreme Court’s ruling in Victor establishes that a jury instruction
       defining reasonable doubt is not automatically erroneous, contrary to the long-standing rule
       in Illinois, and that such an instruction does not automatically violate a defendant’s right to
       a fair trial as guaranteed by the due process clause. See Victor, 511 U.S. at 5; Green, 225 Ill.
       2d at 622 (adopting some of the language set forth in Victor but in a different context).
       Indeed, the Supreme Court noted in Victor that it had only found that a reasonable doubt
       instruction violated the due process clause one time in the past. See Victor, 511 U.S. at 5.
       According to the Supreme Court, due process is violated only if under the totality of the
       circumstances, there is a reasonable likelihood that the jury understood that the instructions
       allowed it to find the defendant guilty based upon a standard of proof that was less than
       beyond a reasonable doubt. See Victor, 511 U.S. at 5; Green, 225 Ill. 2d at 622; Layhew, 139

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       Ill. 2d at 486 (applying a totality of circumstances test, in a somewhat different context, to
       determine whether certain jury instructions denied the defendant a fair trial).
¶ 49        In the present case, I cannot draw such a conclusion. During the jury selection process
       and during the jury trial itself, the jury was told numerous times that defendant was presumed
       innocent, that the State bore the burden of proof, and that the jury was required to find
       defendant not guilty unless the State proved all of the elements of each count beyond a
       reasonable doubt. During closing arguments, defense counsel reiterated to the jury that the
       beyond a reasonable doubt standard was the highest standard of proof that was available
       under the law. Based upon the totality of the circumstances in this case, I do not believe that
       there was a reasonable likelihood that the jury understood that the jury instructions allowed
       it to find defendant guilty under a lesser standard of proof. See Victor, 511 U.S. at 6. The
       comments made by the trial judge during jury selection–that reasonable doubt was for the
       jury to define–and the prosecutor’s mention of that comment in closing argument do not
       convince me otherwise, although I would recommend that a trial judge refrain from making
       such comments.
¶ 50        In reaching the conclusion that defendant in the instant case was not denied his right to
       due process or a fair trial, I must comment upon People v. Turman, a case which is heavily
       relied upon in the majority opinion. In Turman, under very similar circumstances, the First
       District of the Appellate Court found that the defendant was denied due process and a fair
       trial when the trial court, in response to a jury question during deliberations, gave the jury
       an instruction about reasonable doubt that was nearly identical to the comment made by the
       trial court during jury selection in the instant case. See Turman, 2011 IL App (1st) 091019,
       ¶¶ 19-27. Unfortunately, the opinion in Turman does not present any other facts regarding
       what the jury was told about reasonable doubt during the course of the trial. See Turman,
       2011 IL App (1st) 091019, ¶¶ 19-27. Thus, I am unable either to agree or disagree with the
       appellate court’s ruling in Turman, other than its determination that an erroneous instruction
       defining reasonable doubt constitutes second-prong plain error. See Turman, 2011 IL App
       (1st) 091019, ¶ 27; Sullivan, 508 U.S. at 281-82 (an erroneous reasonable doubt instruction
       constitutes structural error).
¶ 51        Because I would find that the trial judge’s comments in this case did not constitute error,
       I would conclude that plain-error review does not apply to this issue and that the forfeiture
       of this issue must be honored. Walker, 232 Ill. 2d at 124. In addition, I would find that there
       is no indication in the record that defense counsel was ineffective in relation to this issue.
¶ 52        For the reasons stated, I respectfully concur in part and dissent in part from the majority’s
       opinion.




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