                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Johnson, 2013 IL App (1st) 111317




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



District & No.             First District, Sixth Division
                           Docket No. 1-11-1317


Rule 23 Order filed        June 28, 2013
Rule 23 Order
withdrawn                  July 19, 2013
Opinion filed              July 26, 2013
Rehearing denied           August 12, 2013


Held                       Defendant’s conviction for first-degree murder was upheld over his
(Note: This syllabus       contentions that errors occurred in the State’s re-cross-examination of a
constitutes no part of     defense witness, the denial of defense counsel’s request for re-redirect
the opinion of the court   examination of a defense witness, the admission of evidence that was
but has been prepared      hearsay, the State’s use of a document purporting to be notes taken during
by the Reporter of         an interview of a witness, and the trial court’s attempt to define
Decisions for the          “reasonable doubt” during voir dire and to question potential jurors about
convenience of the         whether they had any “qualms” about the principles set forth in Supreme
reader.)
                           Court Rule 431(b).


Decision Under             Appeal from the Circuit Court of Cook County, No. 09-CR-10177 (01);
Review                     the Hon. Vincent M. Gaughan, Judge, presiding.


Judgment                   Affirmed.
Counsel on                  Michael J. Pelletier, Alan D. Goldberg, and Kathleen Hill, all of State
Appeal                      Appellate Defender’s Office, of Chicago, for appellant.

                            Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Jon
                            Walters, and Nancy Colletti, Assistant State’s Attorneys, of counsel), for
                            the People.


Panel                       JUSTICE HALL delivered the judgment of the court, with opinion.
                            Justices Gordon and Reyes concurred in the judgment and opinion.



                                              OPINION

¶1           Following a jury trial, defendant Norman Johnson was convicted of first-degree murder
        in the shooting death of Jerrell Jackson. The trial court denied defendant’s motion for a new
        trial and he was sentenced to 40 years’ imprisonment. The trial court subsequently denied
        defendant’s motion to reconsider his sentence. He now appeals his conviction. For the
        reasons that follow, we affirm.
¶2           The events in this case stemmed from an underlying ongoing dispute between a man
        named Douglas Johnson, also known as “Fresh” or “Doug,” and a man named Jason Coley.
        Evidence was presented that approximately a week prior to the shooting, Johnson and Coley
        were involved in an ongoing dispute over a stolen firearm belonging to Coley.
¶3           The evidence established that in the late evening of September 21, 2008, Johnson was
        riding a bike in the 700 block of South St. Louis Avenue in Chicago, Illinois. Jerrell Jackson
        and several other men were playing dice on the sidewalk. Jackson’s girlfriend, Margaret
        Faulkner, who was 16 years old at the time, was watching the dice game from a first-floor
        window of a three-story apartment building located almost directly across the street from the
        dice game. Faulkner and Johnson gave trial testimony concerning events immediately
        preceding the shooting.1
¶4           Faulkner testified that after the dice game ended, everyone who participated in the game
        left the area except for Jackson. Faulkner noticed Johnson ride past on a bike. Faulkner then
        observed two men wearing hooded sweatshirts (hoodies) emerge from the alley near her
        window. The men looked toward Johnson and began shooting. Faulkner testified that
        Johnson was shot and fell, but he got up and ran from the scene. Faulkner momentarily left
        the window and ran to wake her cousin. When they returned to the window, Faulkner saw


                1
                 At the time of trial, Faulkner was in custody on a contempt charge for failing to comply
        with a State subpoena to testify in this case and Johnson was in custody on a pending charge of
        unlawful use of a weapon by a felon.

                                                  -2-
       Jackson lying on the ground. The shooters were gone.
¶5         Faulkner and her cousin ran outside to check on Jackson. He died at the scene from
       gunshot wounds to his abdomen and upper body. Johnson sustained a nonfatal gunshot
       wound to his left arm requiring surgery. A third man, sitting in a first-floor apartment,
       sustained a nonfatal gunshot wound from a stray bullet.
¶6         Johnson’s version of events differed somewhat from Faulkner’s version. Unlike
       Faulkner, Johnson testified that the dice game was still in progress when the shooting began.
       He also testified that there were three shooters, rather than two shooters.
¶7         Johnson, a convicted felon, testified that just prior to the shooting, he was riding a bike
       along the sidewalk on the 700 block of South St. Louis Avenue, when he encountered a dice
       game being played on the sidewalk. Johnson testified that he did not want to disrupt the dice
       game by riding through it, so he stopped on his bike to allow Jerrell Jackson to roll the dice.
       As Jackson was shaking the dice preparing to roll, Johnson looked around to make sure no
       police were in the area. He then observed three men standing across the street at the mouth
       of the alley. The men were standing in a triangle formation.
¶8         One man wore a white T-shirt and a baseball cap pulled down on his head. The other two
       men wore black hoodies with the hoods pulled over their heads. Johnson called Jackson’s
       attention to the men, asking if he recognized any of them. As Jackson turned to look, the man
       wearing the white T-shirt said “yeah, nigger,” and started shooting. Johnson recognized the
       voice as belonging to Coley.
¶9         Johnson jumped off his bike and started running. Jackson and another young man who
       had been playing dice also ran. Jackson fell to the ground. Johnson was shot and
       momentarily fell to the ground before getting up and running from the scene. Johnson was
       taken to the hospital, where he received treatment for a gunshot wound to his arm.
¶ 10       Johnson denied speaking with detectives at the hospital, even though it was stipulated
       that if Detective Maresso were called to testify, she would testify that she and her partner
       interviewed Johnson in the emergency room at Mount Sinai Hospital on September 22, 2008,
       and that during the interview, Johnson stated that he recognized Coley as one of the shooters.
       Johnson told detectives that he and Coley grew up in the same neighborhood and had known
       each other for a number of years.
¶ 11       On September 23, 2008, two days after the shooting, detectives interviewed Faulkner at
       her mother’s house. Faulkner signed a photo spread advisory form which stated that photos
       of the individuals involved in the shooting were not necessarily included in the photo array.
       Faulkner then viewed three negative photo arrays. A negative photo array is an array of
       photos that does not include a photo of the suspect. Faulkner did not make any identifications
       from this group of photos.
¶ 12       Detective Roberto Garcia testified that on September 23, 2008, he and his partner met
       with Johnson in an alley near the scene of the shooting. They interviewed Johnson and
       showed him two photo arrays. Johnson did not make any identifications from this group of
       photos. Johnson denied speaking with the detectives on September 23, 2008, but
       acknowledged his signature on a photo spread advisory form for that date.
¶ 13       Police continued their investigation, speaking with potential witnesses and gathering

                                                -3-
       more information. The detectives eventually created two additional photo arrays. One array
       included a photograph of defendant and the other a photograph of Coley. Detective Garcia
       interviewed Johnson on October 5, 2008, at police headquarters. Johnson viewed the photo
       arrays and identified Coley as one of the shooters and identified defendant as being with
       Coley when the shooting began. At trial, Johnson testified that when he identified defendant
       and Coley he was merely identifying who they were and not that they had done anything.
¶ 14        In December 2008, police arrested Coley in connection with the shooting. He
       subsequently gave a statement confessing to the shooting and identified defendant as a
       shooter. On December 16, 2008, Johnson and Faulkner viewed separate physical lineups and
       identified Coley as one of the shooters. Faulkner testified that approximately two weeks after
       she identified Coley, detectives informed her that he had confessed to the shooting. Faulkner
       also gave a statement to the assistant State’s Attorney, stating that during the shooting, Coley
       was wearing red and black, and that the second shooter was wearing all black.
¶ 15        On January 13, 2009, Johnson appeared before a grand jury and identified Coley as one
       of the shooters. In May 2009, detectives received an anonymous telephone tip informing
       them of defendant’s location. Defendant was arrested on May 16, 2009. That same day,
       Faulkner viewed a physical lineup and identified defendant as the second shooter. She
       testified the police did not suggest whom she should identify.
¶ 16        On May 26, 2009, Faulkner testified before a grand jury and identified a photograph of
       Coley as the first shooter and identified a photograph of defendant as the second shooter. At
       trial, Faulkner testified that defendant was the second shooter and that if there was a third
       shooter, she would not have been able to observe him from her vantage point at the window.
¶ 17        Johnson acknowledged he appeared before a grand jury on May 28, 2009, and identified
       defendant and Coley as persons he saw raise their respective guns and fire. Contrary to his
       grand jury testimony, Johnson testified at trial that he did not actually observe defendant
       shoot his firearm because after Coley started shooting, he closed his eyes and ran. Johnson
       added that he did not see any of the shooters’ faces and only identified Coley based on his
       voice. Johnson acknowledged telling the assistant State’s Attorney that he would refuse to
       testify at trial and would claim he was being forced to testify.
¶ 18        At the time of trial, Coley was serving a 24-year prison sentence after pleading guilty to
       the murder of Jerrell Jackson. Coley testified that Johnson was the intended target of the
       shooting, not Jackson. Coley testified that approximately a week prior to the shooting, he and
       Johnson were engaged in an ongoing dispute over a stolen firearm and that Johnson had
       made verbal threats against him.
¶ 19        Coley testified that just prior to the shooting, he met with defendant and a man he did not
       know. Coley, defendant, and the unnamed man then went looking for Johnson on the 700
       block of South St. Louis Avenue, an area Johnson was known to frequent. Coley was
       wearing a white T-shirt and brown hat. When the trio emerged from an alley onto St. Louis
       Avenue, Coley looked across the street and observed Johnson and a crowd of men playing
       dice. Coley testified that as he and Johnson looked at each other, he thought he saw Johnson
       reaching into his waistband for a gun. Coley began shooting at Johnson.
¶ 20        Coley testified that defendant and the unnamed man were behind him when he began

                                                 -4-
       shooting. He testified that Jerrell Jackson was hit when Johnson, who was the intended
       target, stepped back. Coley claimed he could not remember if defendant or the other man had
       guns in their hands when the shooting started. However, in a prior statement to detectives and
       the assistant State’s Attorney, Coley stated that he and defendant were both armed with 9-
       millimeter handguns. Coley further stated that he shot five or six times and was not paying
       attention to how many times defendant shot his firearm.
¶ 21        Evidence technicians and lab analysts testified that shell casings recovered from the
       crime scene were fired from two different guns. No fingerprint evidence was recovered from
       any of the shell casings.
¶ 22        Defendant presented an alibi defense, seeking to establish that he was at his girlfriend’s
       house at the time of the shooting. English Wilson, who was defendant’s girlfriend at the time,
       testified she was discharged from the hospital on the afternoon of September 21, 2008, after
       undergoing surgery for an ectopic pregnancy. Wilson claimed she then traveled to her
       apartment, which was located miles from the scene of the shooting. Wilson testified
       defendant stayed with her all afternoon, evening, and overnight while she recuperated from
       the surgery.
¶ 23        On cross-examination, Wilson acknowledged that even after she discovered defendant
       had been arrested for murder, she still never contacted the police to provide them with any
       alibi information. Wilson and her cousin, Deontae Saunders, gave conflicting testimony
       regarding who helped Wilson up to her second-floor apartment after she returned home from
       the hospital. Wilson testified that when she arrived home, defendant and her sister helped her
       up the stairs to her apartment. In contrast, Saunders testified that he, defendant, and Wilson’s
       brother carried Wilson up the stairs to her apartment.
¶ 24        After being admonished by the trial court, defendant chose not to testify. Following
       closing arguments, the jury returned a verdict of guilty of first-degree murder. Defendant’s
       posttrial motion for a new trial was denied. He was sentenced to 40 years’ imprisonment. The
       trial court denied defendant’s motion to reconsider his sentence. This appeal followed.

¶ 25                                        ANALYSIS
¶ 26       Defendant first raises a number of arguments relating to the State’s re-cross-examination
       of defense witness Kimyona Taylor, an investigator with the public defender’s office. None
       of the arguments warrant reversal.
¶ 27       Taylor was called as a defense witness to impeach Margaret Faulkner’s credibility
       concerning her identification of defendant as one of the shooters. On direct examination,
       Taylor testified that on January 7, 2011, approximately a week before trial began, she spoke
       to Faulkner concerning the shooting. Taylor claimed she took written notes of the
       conversation, read them back to Faulkner and allowed her to read and review the notes.
       When Faulkner verified the notes reflected what she had said, she signed the notes. Taylor’s
       testimony contradicted Faulkner’s claim that she never reviewed the notes before signing
       them. Taylor’s notes were introduced as an exhibit.
¶ 28       On cross-examination, Taylor was asked whether her conversation with Faulkner on
       January 7, 2011, was the first time she had spoken to Faulkner. Taylor answered, “[n]o, it’s

                                                 -5-
       not the first time,” and then admitted that on December 14, 2009, she accompanied defense
       counsel to interview Faulkner. Taylor maintained she did not take any notes of the interview
       conducted in December 2009.
¶ 29       Taylor testified that during the January 7 interview, Faulkner told her Coley was one of
       the shooters and that there was a second or “other” shooter, described as short and dark.
       Taylor testified she wrote down “other shooter” in her notes only because Faulkner claimed
       the police told her there were two shooters and showed her a photograph of a man whose
       name she did not recognize. Taylor acknowledged she never showed Faulkner a photograph
       of defendant during the interviews conducted in December 2009 or January 2011.
¶ 30       On redirect examination, defense counsel elicited testimony from Taylor to the effect that
       Faulkner was a teenager, susceptible to suggestion. Taylor testified that when she
       interviewed Faulkner on January 7, 2011, she made an effort not to suggest to Faulkner what
       answers to give because Faulkner had already claimed the police suggested to her whom to
       pick out as the shooter. Taylor’s testimony contradicted Faulkner’s testimony that the police
       never suggested to her whom she should identify.
¶ 31       Defense counsel then elicited the following testimony from Taylor regarding her
       interview with Coley conducted on January 6, 2011:
               “Q. And did anything happen with respect to this case the day before you went to see
           Margaret Faulkner, January 7, 2011?
               A. Yes.
               Q. What was that?
               A. I sat in on an interview of another individual on this case.
               Q. And that would have been on January 6th of this year [2011]?
               A. Correct.
               Q. And who was that individual?
               A. Jason Coley.
               Q. And was it after that that you went back to Margaret Faulkner and asked her about
           the events, wrote your notes down and asked her to sign them?
               A. Yes.”
¶ 32       After these questions and answers, the State elicited the following on re-cross-
       examination:
               “Q. Ms. Taylor, since you mentioned an interview that you had the day before with
           Jason Coley, I would like to ask you some questions about that now.
               A. Okay.
               Q. Did this interview take place here in the back of the courtroom?
               A. Yes.
               Q. And who was present for that interview?
               A. Myself, attorney Ruth McBeth, attorney Kelly McCarthy, Jason Coley and an
           individual from the Illinois Department of Corrections.


                                                -6-
               Q. And of course you were taking notes during this interview of Jason Coley; is that
           correct?
               A. No, I was not.
               Q. Is this the first time that you had an opportunity to interview Jason Coley?
               A. Yes, it was.
               Q. And so obviously you also wanted to familiarize yourself with the case and the
           facts of the case, correct?
               A. Yes.”
¶ 33       The State showed Taylor a document purporting to be notes taken during Coley’s
       interview. Taylor acknowledged she did not personally author the document, but added it
       accurately reflected her recollection of what Coley said during the interview. The State then
       noted that the document showed Coley stated four people, rather than three, participated in
       the shooting. Taylor acknowledged this, and when asked to elaborate, testified that Coley
       stated one person remained in the car, while the other three exited the vehicle to look for
       Johnson.
¶ 34       The State pointed out to Taylor that Coley’s statement about three people shooting was
       not reflected in the document. Defense counsel objected on the ground that Taylor had not
       identified the document. The trial court overruled the objection finding that defense counsel
       had introduced the subject of Coley’s interview.
¶ 35       Taylor testified that during his interview, Coley stated he knew three of the people, one
       being defendant, but that defendant never fired his gun. Defense counsel withdrew her
       objection. Later, over another defense objection, the State elicited testimony from Taylor that
       during the interview, Coley mentioned defendant’s name, but added defendant never fired
       his gun.
¶ 36       Defendant now argues on appeal that the State’s re-cross-examination of Taylor went
       beyond the scope of defense counsel’s redirect examination. Defendant claims that when the
       State probed into the substance of Coley’s statements during its re-cross-examination of
       Taylor, the questioning exceeded the scope of defense counsel’s redirect examination. We
       disagree.
¶ 37       Trial court rulings regarding the scope of cross-examination and re-cross-examination
       are within the sound discretion of the trial court. People v. Blackwell, 76 Ill. App. 3d 371,
       378 (1979); People v. Graves, 2012 IL App (4th) 110536, ¶ 16. Such rulings will not be
       disturbed absent an abuse of discretion resulting in manifest prejudice to the defendant.
       Blackwell, 76 Ill. App. 3d at 378. We find no abuse of discretion here.
¶ 38       Generally, cross-examination is limited in scope to the subject matter inquired into on
       direct examination. People v. Williams, 66 Ill. 2d 478, 486 (1977). However, this limitation
       is construed liberally to allow inquiry into whatever subject tends to explain, qualify,
       discredit or destroy the witness’s direct testimony although it may incidentally constitute new
       matter which aids the cross-examiner’s case. Id. at 486; People v. Terrell, 185 Ill. 2d 467,
       498 (1998).
¶ 39       As mentioned, Taylor testified on redirect examination that on January 6, 2011, she sat

                                                -7-
       in on an interview with Coley, and the next day she met with Faulkner to obtain her signature
       on notes from an earlier interview. Taylor’s testimony could have left the jury with the
       impression that it was something Coley said during his interview that prompted Taylor to go
       back and obtain Faulkner’s signature on notes from the earlier interview. On re-cross-
       examination, the State was entitled to rebut the possible impression left by defense counsel’s
       redirect examination of Taylor.
¶ 40       Defendant next contends the trial court abused its discretion by denying defense counsel
       an opportunity to conduct re-redirect examination of Taylor regarding the newly expanded
       scope of questioning. Again, we must disagree.
¶ 41       We first observe this issue has not been properly preserved for review. Generally, to
       preserve the issue of the wrongful exclusion of evidence, an offer of proof must be
       submitted. People v. Cobb, 186 Ill. App. 3d 898, 905 (1989). The purpose of an offer of
       proof is to inform the trial court and opposing counsel of the nature and substance of the
       evidence to be introduced and to preserve the evidence for review. People v. Ferns, 247 Ill.
       App. 3d 278, 286-87 (1993).
¶ 42       In this case, defense counsel did not make an offer of proof at trial. When the State
       concluded its re-cross-examination of Taylor, defense counsel merely requested to conduct
       re-redirect examination of Taylor, which the trial court denied. Thus, defendant has forfeited
       this issue by failing to make an offer of proof. Moreover, defendant has not shown how he
       was prejudiced by being prohibited from conducting re-redirect examination of Taylor.
¶ 43       The purpose of redirect examination is to explain new matters brought out on cross-
       examination. People v. Tingle, 279 Ill. App. 3d 706, 716 (1996). On redirect examination a
       witness may be asked questions designed to remove unfavorable inferences or impressions
       raised on cross-examination. People v. Sanchez, 73 Ill. App. 3d 607, 610 (1979). In this case,
       Taylor testified on re-cross-examination that Coley told her the defendant never fired his
       weapon. There has been no showing of a need to further develop this testimony on re-redirect
       examination.
¶ 44       Defendant next argues that the substance of the statements Coley made in the January 6
       interview were inadmissible hearsay not subject to any exception to the hearsay rule. The
       State counters that Coley’s statements were not offered as substantive evidence but were,
       rather, offered for impeachment purposes as prior inconsistent statements that contradicted
       his trial testimony.
¶ 45       The admission of evidence is within the sound discretion of the trial court, whose ruling
       will not be disturbed absent an abuse of that discretion. People v. Thomas, 171 Ill. 2d 207,
       218 (1996). Hearsay is an out-of-court statement offered to prove the truth of the matter
       asserted therein and dependent for its value on the credibility of the out-of-court declarant.
       People v. Crowe, 327 Ill. App. 3d 930, 937 (2002). The fundamental basis for excluding such
       a statement is the lack of an opportunity to test the credibility of the statement through cross-
       examination. Id.
¶ 46       Hearsay is generally inadmissible unless it falls within an exception to the hearsay rule.
       People v. Caffey, 205 Ill. 2d 52, 88 (2001). There is an exception to the hearsay rule for prior
       inconsistent statements of a testifying witness, which may be admitted to impeach the

                                                 -8-
       witness’s credibility. People v. Wilson, 2012 IL App (1st) 101038, ¶ 38.
¶ 47        The State may attack the credibility of a witness by impeaching the witness with a prior
       inconsistent statement. People v. Donegan, 2012 IL App (1st) 102325, ¶ 57. However, when
       the State impeaches its own witness with a prior inconsistent statement, the State must show
       that the witness’s trial testimony affirmatively damaged its case. Id. In order for witness
       testimony to be affirmatively damaging, as opposed to merely disappointing to the
       prosecution’s case, the testimony must give “positive aid” to the defendant’s case. People
       v. Cruz, 162 Ill. 2d 314, 360 (1994); People v. McCarter, 385 Ill. App. 3d 919, 933 (2008).
¶ 48        Here, the State contends Coley’s trial testimony affirmatively damaged its case where he
       testified that he lied about “a lot of stuff in the interrogation.” The State also points to
       Coley’s testimony where he testified he implicated defendant after detectives showed him
       defendant’s photograph and provided him with defendant’s name. The State further points
       to Coley’s testimony where he testified that when he was interviewed by detectives, he knew
       defendant had been arrested and then released, and he became suspicious that defendant had
       implicated him in the crime. The State argues that the clear import of Coley’s testimony was
       to suggest he implicated defendant only after he came to believe defendant had implicated
       him and because detectives had provided him with defendant’s name and photograph.
¶ 49        We do not believe the State’s case was affirmatively damaged by such testimony. Coley’s
       statements were not impeaching because they were not inconsistent with his trial testimony.
       The State contends Coley’s statements were impeaching because he mentioned defendant’s
       name during the interview. However, Coley never wavered in his trial testimony that
       defendant was a shooter.
¶ 50        Nonetheless, even if the trial court erred in admitting this evidence, it was harmless error
       in light of the fact that similar evidence was heard by the jury when defense counsel cross-
       examined Coley. See People v. Chatmon, 236 Ill. App. 3d 913, 930-31 (1992) (improper
       impeachment subject to harmless error analysis). On cross-examination, Coley testified that
       a couple of weeks prior to trial, he had a conversation with defense counsel during which he
       stated four people instead of three participated in the crime, and that the third and fourth men
       were his friends.
¶ 51        Defendant next contends the State was improperly allowed to re-cross-examine Taylor
       with the document purporting to be notes taken during Coley’s interview. Defendant argues
       that no adequate foundation was laid for the document where Taylor testified she had not
       authored the document. We disagree. A proper foundation was laid when Taylor testified that
       although she did not personally author the document, it accurately reflected her recollection
       of what Coley said during the interview. See People v. Lewis, 52 Ill. App. 3d 477, 483
       (1977).
¶ 52        Defendant next contends the trial court committed reversible error when it attempted to
       define “reasonable doubt” for the jury during voir dire. During voir dire the trial court made
       the following comments:
                “The State has the burden of proof beyond a reasonable doubt. In Illinois we do not–it
            is not defined by the Supreme Court or by the State legislature. That’s something for you
            to decide. But if any of you have served on a civil jury, if you use the analogy of a scale,

                                                 -9-
           all you have to do is tilt it. And that’s proof beyond a preponderance of the evidence.
                In a criminal case, if you use the same scale, it’s a balance like this. (Indicating.)
           Proof beyond a reasonable doubt is the highest burden that there is at law in Illinois and
           the United States.”
¶ 53       The trial court’s comments show the court indicated to the jury that proof beyond a
       reasonable doubt is a higher standard than the civil standard of proof by a preponderance of
       the evidence. While referring to a scale, the trial court evidently gestured to show an
       imaginary tipping of the balance to demonstrate the difference between the two standards.
¶ 54       Although we do not condone the reference and comparison to the civil standard, we
       cannot say that the trial court’s comments constitute error, particularly where the court told
       jurors that reasonable doubt was the highest burden at law and that it was for them to decide
       what reasonable doubt meant. Therefore, even if we reviewed this issue under the plain-error
       doctrine, we would find there was no error.
¶ 55       Finally, we reject defendant’s contention that he was denied a fair trial on the ground that
       the trial court failed to question prospective jurors in accordance with the amended version
       of Supreme Court Rule 431(b).2 Effective May 1, 2007, Supreme Court Rule 431(b) was
       amended to impose a sua sponte duty on trial courts to question prospective jurors,
       individually or in a group, as to whether they understood and accepted the principles outlined
       in People v. Zehr, 103 Ill. 2d 472, 477 (1984), “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.” See People v. Haynes, 399 Ill. App. 3d 903, 912 (2010).
¶ 56       Defendant claims the trial court failed to comply with Rule 431(b), when after explaining
       each principle, the court merely asked jurors if any of them had any “qualms” about these
       principles. Defendant maintains that while asking about “qualms” may be sufficient to
       determine whether jurors accepted the principles enumerated in Rule 431(b), it does not offer
       any insight into whether they actually understood them. Defendant acknowledges he failed
       to preserve this issue for review, but asks us to consider the matter under the plain-error
       doctrine on the ground that the evidence was closely balanced in light of his alibi evidence.
¶ 57       The issue of whether a trial court complied with a supreme court rule is reviewed de


              2
               Supreme Court Rule 431(b), as amended, provides:
              “The court shall ask each potential juror, individually or in a group, whether that juror
              understands and accepts the following principles: (1) that the defendant is presumed
              innocent of the charge(s) against him or her; (2) that before a defendant can be convicted
              the State must prove the defendant guilty beyond a reasonable doubt; (3) that the defendant
              is not required to offer any evidence on his or her own behalf; and (4) that the defendant’s
              failure to testify cannot be held against him or her; however, no inquiry of a prospective
              juror shall be made into the defendant’s failure to testify when the defendant objects.
                       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)
              (eff. May 1, 2007).

                                                  -10-
       novo. People v. Lloyd, 338 Ill. App. 3d 379, 384 (2003). In People v. Thompson, 238 Ill. 2d
       598, 607 (2010), our supreme court held that in order to comply with Rule 431(b), the trial
       court “must ask each potential juror whether he or she understands and accepts each of the
       principles in the rule.” The court stated that Rule 431(b) “requires questioning on whether
       the potential jurors both understand and accept each of the enumerated principles.” Id.
¶ 58       We acknowledge some courts have concluded that a trial court’s failure to specifically
       question potential jurors during voir dire as to whether they understood and accepted the
       principles enumerated in Rule 431(b) does not necessarily constitute error. See, e.g., People
       v. Digby, 405 Ill. App. 3d 544, 548-49 (2010) (trial court’s use of the phrase “have a problem
       with” did not constitute error); People v. Ingram, 401 Ill. App. 3d 382, 393 (2010) (trial
       court’s inquiry as to whether potential jurors had any “difficulty or quarrel” with any of the
       Zehr principles did not constitute error); People v. Quinonez, 2011 IL App (1st) 092333,
       ¶¶ 5, 50 (finding no error where trial court asked prospective jurors if they had “a problem”
       or “disagreed” with any of the Zehr principles).
¶ 59       Nevertheless, we find that the supreme court’s holding in Thompson compels us to
       conclude otherwise. We believe that if trial courts followed the language of Rule 431(b), and
       specifically asked prospective jurors during voir dire if they understood and accepted the
       principles enumerated in the rule, this would have the beneficial effect of putting an end to
       arguments as to whether particular words chosen by a trial judge complied with the rule. That
       being said, we must decline defendant’s request to review this matter under the closely
       balanced prong of the plain-error analysis. Under the closely balanced evidence prong of
       plain-error review, a defendant must show both that there was plain error and that 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, 187 (2005).
¶ 60       In light of the evidence presented at trial, we do not find that the evidence was so closely
       balanced that the trial court’s error in questioning prospective jurors concerning their
       understanding and acceptance of the principles enumerated in Rule 431(b) constituted plain
       error. In his recorded statement to detectives, Jason Coley identified defendant as one of the
       shooters and stated that he and defendant were both armed with 9-millimeter handguns.
       Evidence technicians and lab analysts testified that the shell casings recovered from the scene
       came from two different guns.
¶ 61       On the date defendant was arrested, Margaret Faulkner viewed a physical lineup and
       identified him as one of the shooters. Faulkner testified before a grand jury and identified a
       photograph of defendant as one of the shooters. Faulkner testified at trial that just before the
       shooting began, she saw two men wearing hoodies emerge from the alley near her window.
       The men looked toward Douglas Johnson and started shooting. Faulkner testified defendant
       was the second shooter, and if there was a third shooter, she would not have seen him from
       her vantage point at the window.
¶ 62       Douglas Johnson testified that just before the shooting began, he saw three men standing
       across the street from him, at the mouth of an alley. The men were standing in a triangle
       formation and two of the men wore hoodies. Johnson recognized Coley as one of the
       shooters. Johnson later viewed two photo arrays and identified Coley as one of the shooters


                                                -11-
       and identified defendant as being with Coley when the shooting began. Johnson also
       appeared before a grand jury and identified defendant as one of the men who raised a
       handgun and fired.
¶ 63       Although defendant emphasizes that he presented alibi testimony, we note that his alibi
       witnesses included his girlfriend and her cousin. The trier of fact is not required to accept
       alibi testimony over positive identification of an accused, particularly where the alibi
       testimony is provided by biased witnesses. People v. Mullen, 313 Ill. App. 3d 718, 729
       (2000). Moreover, the alibi testimony was inconsistent and not credible. Defendant’s
       girlfriend, English Wilson, testified that when she arrived home from the hospital, defendant
       and her sister helped her up the stairs to her second-floor apartment. In contrast, Wilson’s
       cousin, Deontae Saunders, testified he, defendant, and Wilson’s brother carried Wilson up
       the stairs to her apartment. In sum, defendant has failed to show that the trial court’s error
       in questioning prospective jurors as to their understanding and acceptance of the principles
       enumerated in Rule 431(b) amounted to plain error under the closely balanced prong of the
       plain-error analysis.
¶ 64       Accordingly, for the reasons set forth above, we affirm the judgment of the circuit court.

¶ 65      Affirmed.




                                               -12-
