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                                Appellate Court                          Date: 2019.02.13
                                                                         09:24:16 -06'00'



                    People v. Lilly, 2018 IL App (3d) 150855



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           VENUS M. LILLY, Defendant-Appellant.



District & No.    Third District
                  Docket No. 3-15-0855



Filed             May 4, 2018



Decision Under    Appeal from the Circuit Court of Will County, No. 15-CF-0321; the
Review            Hon. Sarah F. Jones, Judge, presiding.



Judgment          Affirmed.


Counsel on        Michael J. Pelletier, Peter A. Carusona, and Dimitri Golfis, of State
Appeal            Appellate Defender’s Office, of Ottawa, for appellant.

                  James Glasgow, State’s Attorney, of Joliet (Patrick Delfino, Lawrence
                  M. Bauer, and Diane L. Campbell, of State’s Attorneys Appellate
                  Prosecutor’s Office, of counsel), for the People.
     Panel                   JUSTICE O’BRIEN delivered the judgment of the court, with
                             opinion.
                             Justice Wright concurred in the judgment and opinion.
                             Justice McDade dissented, with opinion.


                                              OPINION

¶1        Defendant, Venus M. Lilly, appeals following her conviction for aggravated battery. She
       argues that the circuit court incorrectly admonished the venire under Illinois Supreme Court
       Rule 431(b) (eff. July 1, 2012), and that she is entitled to a new trial under the plain error
       doctrine because the evidence was closely balanced. We affirm.

¶2                                                FACTS
¶3         The State charged defendant with a single count of aggravated battery (720 ILCS
       5/12-3.05(d)(4)(i) (West 2014)). The indictment alleged that defendant made contact of an
       insulting and provoking nature with Jason Mitchem, knowing Mitchem to be a peace officer
       performing his official duties.
¶4         Jury selection commenced on September 28, 2015. During that process, the court posed the
       following question to the potential jurors:
                   “Do you understand and accept the following, that a person accused of a crime is
               presumed to be innocent of the charges against him or her, and the presumption of
               innocence stays with the Defendant throughout the trial and is not overcome unless
               from all the evidence you believe the State has proved his or her guilt beyond a
               reasonable doubt?”
       Each potential juror, proceeding one-at-a-time, responded “Yes.” The court then asked the
       following:
               “Do you understand and accept the following, that the State has the burden of proving
               the Defendant’s guilt beyond a reasonable doubt? The Defendant does not have to
               prove his innocence, does not have to present any evidence on his or her own behalf.
               Do you have any disagreement with those principles of law?”
       Each potential juror, again individually, responded “No.”
¶5         Following the trial, the jury found defendant guilty of aggravated battery. The court
       sentenced defendant to a 30-month term of probation. This appeal follows.

¶6                                             ANALYSIS
¶7          Defendant argues that the circuit court incorrectly admonished potential jurors under
       Illinois Supreme Court Rule 431(b) (eff. July 1, 2012). More specifically, defendant asserts
       that it was error for the court to ask whether the potential jurors had any disagreement with
       certain principles immediately after asking if they understood and accepted those principles.
       Admitting that she failed to preserve the error, defendant requests that this court review for
       plain error. She maintains that remand for a new trial is appropriate because the evidence at
       trial was closely balanced.


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¶8          The doctrine of plain error provides a limited exception to the general rule of forfeiture.
       People v. Herron, 215 Ill. 2d 167, 177 (2005). The first step in any plain error analysis is to
       determine whether a clear or obvious error occurred. See People v. Piatkowski, 225 Ill. 2d 551,
       565 (2007).
¶9          Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) provides the following:
                 “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
                 if a defendant does not testify it cannot be held against him or her; however, no inquiry
                 of a prospective juror shall be made into the defendant’s decision not 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.”
¶ 10        In People v. Wilmington, 2013 IL 112938, ¶ 28, the circuit court explained the Rule 431(b)
       principles to the venire, then inquired whether any member “ ‘disagree[d] with this
       fundamental principle of law?’ ” The supreme court found that question insufficient under
       Rule 431(b), writing: “While it may be arguable that the court’s asking for disagreement, and
       getting none, is equivalent to juror acceptance of the principles, the trial court’s failure to ask
       jurors if they understood the four Rule 431(b) principles is error in and of itself.” (Emphases in
       original.) Id. ¶ 32. Notably, the court’s ruling was not that the circuit court had erred in asking
       if the potential jurors disagreed with the Rule 431(b) principles. Indeed, the court opined that
       asking about disagreement could be tantamount to asking about acceptance. The reversible
       error in that case was that the circuit court never also inquired as to whether the members of the
       venire understood the principles.
¶ 11        In the present case, the circuit court explicitly asked the potential jurors whether they
       understood and accepted each of the Rule 431(b) principles. See supra ¶ 4. That fact
       immediately distinguishes this case from Wilmington. In the simplest terms, Rule 431(b)
       requires the circuit court to ask members of the venire whether they “understand[ ] and
       accept[ ]” certain principles, and the circuit court here asked exactly that.
¶ 12        We must next consider whether the second paragraph of Rule 431(b) was satisfied by the
       court’s method of questioning. That portion of the rule provides that “[t]he 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) (eff. July 1, 2012). The record shows that
       the circuit court divided the Rule 431(b) principles into two separate inquiries. After asking if
       the potential jurors understood and accepted the principles, the circuit court twice gave those
       potential jurors an opportunity to respond individually. Given the opportunity to speak and
       respond to the court’s inquiries, no juror indicated that he or she did not understand the
       principles or did not accept the principles. Accordingly, we find that the circuit court did not
       commit error under Rule 431(b).
¶ 13        In coming to this conclusion, we acknowledge that the circuit court, in its second inquiry,
       added the additional question “Do you have any disagreement with those principles of law?”
       before inviting the individual venire members to respond. Defendant maintains that this
       question “did not comply with Rule 431(b)” and was a clear error under Wilmington. As we

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       have pointed out, however, Wilmington stands only for the proposition that asking about
       disagreement is not an adequate substitute for asking about both understanding and acceptance
       under Rule 431(b). See supra ¶ 10. In other words, while the rule mandates that the court ask
       two questions of the venire, it cannot be read to proscribe any additional questions.
¶ 14       Defendant also argues that the fact that each potential juror responded to the court’s final
       set of inquiries with “No” indicates that they were answering the “do you have any
       disagreement” question rather than the “do you understand and accept” question. She asserts
       that “Rule 431(b) requires[ ] an answer affirming that [the potential jurors] understood and
       accepted” the principles.
¶ 15       Initially, we find no support for defendant’s assertion that the response to a Rule 431(b)
       voir dire must be in the affirmative. For example, a court that asked the question, “does any
       member of the venire not understand and accept those principles?” would be seeking responses
       in the negative, but would still be in compliance with the rule. It would be imprudent to find
       error based solely upon the syntactical structure of a circuit court’s questions. Further, we do
       not find that the potential jurors’ response of “No” undermines the circuit court’s Rule 431(b)
       compliance in this case. The circuit court asked the potential jurors three questions: whether
       they understood the principles, whether they accepted them, and whether they had any
       disagreement with them. That the disagreement question was posed last in the series does not
       negate the previous two questions. Each potential juror was given an opportunity to respond,
       having heard each question, and not one registered any misunderstanding or nonacceptance.
       As our supreme court has stated, “the rule requires an opportunity for a response from each
       prospective juror on their understanding and acceptance of those principles.” People v.
       Thompson, 238 Ill. 2d 598, 607 (2010). The prospective jurors in the instant case were
       provided precisely that opportunity.

¶ 16                                        CONCLUSION
¶ 17       The judgment of the circuit court of Will County is affirmed.

¶ 18       Affirmed.

¶ 19       JUSTICE McDADE, dissenting:
¶ 20       The majority holds that the circuit court did not err in the delivery of the Rule 431(b)
       admonishments, finding that each potential juror was asked the required questions and
       provided an opportunity to respond. I would find, however, that the “opportunity to respond”
       requirement of Rule 431(b) was not satisfied here, as the jurors merely indicated that they had
       no disagreement with the Rule 431(b) principles, rather than indicating understanding and
       acceptance. I therefore respectfully dissent.
¶ 21       Rule 431(b) places multiple requirements on the circuit court during the voir dire portion
       of a trial. First, the court must “ask each potential juror, individually or in a group, whether that
       juror understands and accepts” each of the four delineated principles of law. Ill. S. Ct. R.
       431(b) (eff. July 1, 2012). The rule also requires that the court “provide each juror an
       opportunity to respond to specific questions concerning [those] principles.” Id. In requiring
       that the potential jurors be given the opportunity to respond, the rule reflects the commonsense



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       notion that the asking of a question by the circuit court is completely meaningless unless there
       is a response to that question.
¶ 22        The circuit court’s first inquiry was compliant with the rule—the judge asked if the jurors
       understood and accepted specific 431(b) principles.1 In the second part of the court’s delivery
       (see supra ¶ 4), the court asked the venire whether it understood and accepted the principle that
       a defendant does not have to prove his innocence or offer any evidence on his own behalf.
       Then, apparently without pause, the court asked if the potential jurors had “any disagreement
       with those principles of law.” The potential jurors, faced with two completely different
       questions, all replied in the negative. And we, quite simply, do not know which question they
       were answering.
¶ 23        We may assume, as the majority apparently has, that the potential jurors, in answering “no”
       following the court’s series of questions, were actually answering the final question, indicating
       that they had no disagreement with the principles of law in question. Indeed, it is not
       unreasonable to assume that when faced with multiple questions, the venire answered the
       question posed more recently. But even that assumption cannot cure the real problem. The
       supreme court made clear in Wilmington that a question regarding the venire’s agreement or
       disagreement does not satisfy Rule 431(b). Wilmington, 2013 IL 112938, ¶ 32. It follows that
       the venire’s response to such a question must also be insufficient. At best, that response could
       suggest that the potential jurors accept the stated principles. However, it sheds no light on
       whether they understand the principles. As a result, it cannot be determined on the record
       before us whether each person on defendant’s jury both understood and accepted that
       defendant was under no obligation to present evidence on her own behalf.
¶ 24        Of even greater concern is the possibility that some of the potential jurors, in answering
       “no” after the series of questions, were actually responding to the court’s first question. In that
       case, those potential jurors would be affirmatively indicating that they either did not
       understand or did not accept (or both) the principles. Of course, because the court’s method of
       questioning prevents us from knowing exactly what question individual venire members were
       responding to, we cannot determine whether any person of defendant’s jury either did not
       understand or did not accept the principle that defendant was under no obligation to present
       evidence on her own behalf. Surely an “opportunity to respond” that does not actually make
       clear whether the potential jurors understood and accepted the Rule 431(b) principles is
       insufficient.
¶ 25        I concede that laws are sometimes complex, often replete with nuance and uncertainty.
       Rule 431(b), however, is not rocket science. It merely requires the court to ask the venire a
       series of yes-or-no questions that are actually spelled out in the rule. The simplicity of
       executing the rule’s requirements reflects its critical importance in our adversarial process. It
       was “designed to ensure that the defendant has a fair and impartial jury—a jury that
       understands and accepts four important constitutional principles.” People v. Sebby, 2017 IL
       119445, ¶ 67. Given the importance of the rule and the ease with which it can be satisfied, it is
       confounding that trial judges continue to get it wrong.



           I would note that the circuit court never even referenced the fourth Rule 431(b) principle, “that if a
           1

       defendant does not testify it cannot be held against him or her.” Ill. S. Ct. R. 431(b) (eff. July 1, 2012).
       Defendant, who actually did testify at trial, does not raise this as a contention of error on appeal.

                                                        -5-
¶ 26        Having found error, I would proceed to a closely-balanced analysis pursuant to defendant’s
       plain error argument. Defendant was charged with making contact of an insulting or provoking
       nature with Officer Mitchem. The evidence at trial showed that defendant placed a 911 call at
       11:31 p.m., claiming that her son was threatening to commit suicide. Four officers, including
       Mitchem, testified that they kicked in defendant’s door and entered the home with guns drawn
       after receiving no response to their knocks. The kicked door struck defendant’s daughter,
       Charlotte, which upset defendant. Four officers, including Mitchem, testified that defendant
       struck or shoved Mitchem in the chest, at which point he took her to the floor.
¶ 27        Charlotte testified that after she was struck by the door, her mother was concerned and
       attempted to come to Charlotte’s aide. Mitchem prevented her from doing so and took
       defendant to the floor. Charlotte testified that she never saw defendant strike Mitchem.
       Defendant testified that she was in her bedroom when she heard a loud crashing noise. She left
       her bedroom and saw her daughter on the floor with a wound on her head. Defendant tried to
       rush to Charlotte’s aide, but Mitchem cut her off. Defendant testified that Mitchem took her to
       the ground and handcuffed her. She denied ever striking Mitchem. Photographs introduced at
       trial showed a wound on Charlotte’s head and bruising around defendant’s eye.
¶ 28        The case is thus a quintessential credibility contest. In People v. Naylor, 229 Ill. 2d 584,
       607 (2008), our supreme court held that such a credibility contest is necessarily closely
       balanced, writing: “Given these opposing versions of events, and the fact that no extrinsic
       evidence was presented to corroborate or contradict either version, the trial court’s finding of
       guilty necessarily involved the court’s assessment of the credibility of the two officers against
       that of defendant.” In this case, no extrinsic evidence was presented that tended to show
       defendant struck Mitchem. Nor did any witness suffer a particular credibility issue, other than
       those attendant to any criminal trial. Accordingly, I would find the evidence in this case closely
       balanced, vacate defendant’s conviction for aggravated battery based on the court’s Rule
       431(b) error, and remand for further proceedings.




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