Appeal from the Circuit Court of Ford County; the Hon. William
M. Roberts, Judge, presiding.
JUSTICE MORTHLAND DELIVERED THE OPINION OF THE COURT:
The defendant, Cheryl Lynn Wilson, appeals from her conviction of shoplifting several packages of cigarettes. We reverse and remand for a new trial.
Trial was held December 3, 1984. Testimony indicates that on August 16, 1984, an employee of the Gibson City, Illinois, Eisner store, observed the defendant slipping several packages of cigarettes into her jeans. The employee notified the store manager of what she had seen and the owners then accosted the defendant. The store owners accompanied the defendant to the store office and then asked her if she had any of the store's merchandise. After initially denying that she had any merchandise, the defendant then unzipped her jeans and produced two packs of cigarettes. When the store owner asked the defendant if she had any other merchandise, the defendant handed her four additional packs of cigarettes.
Caroline Kemper, a Gibson City police officer, was called to the Eisner store and arrested the defendant. The officer retrieved the cigarettes, which were labelled People's exhibit No. 1 at trial, and testified that the defendant stated she had been going to her car to get money to pay for the cigarettes. The defendant also told the officer that the cigarettes were for her boyfriend because she did not smoke. After the defendant's motion for a directed verdict was denied, the defense rested without presenting evidence.
The jury returned a verdict finding the defendant guilty of retail theft in violation of section 16A-3(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 16A-3(a)). The court sentenced the defendant to seven days in the county jail and ordered her to pay restitution of $20.
On appeal, the defendant raises three arguments. The defendant initially contends that the trial court erred in failing to question prospective jurors on several critical issues during voir dire. Although the defendant submitted a number of questions for the court to ask, the crucial questions relate to whether the jurors understood that the defendant was presumed innocent throughout the trial and whether the jurors understood and agreed with the proposition that the State must establish the defendant's guilt beyond a reasonable doubt; whether the prospective jurors would hold against the defendant her failure to testify; and whether the jurors could vote for a verdict of not guilty if the State did not meet its burden.
The defendant also claims that the People's jury instruction No. 11 contained an impermissible mandatory presumption which relieved the State of proving all elements of its case. The disputed instruction stated:
"If you find that the defendant concealed on her person, unpurchased merchandise offered for sale at a retail merchandise establishment; and removed that merchandise beyond the last known station for receiving payments for that merchandise, said person shall be presumed to have possessed the merchandise with the intention of retaining it or with the intention of depriving the merchant permanently of the possession, use or benefit of such merchandise without paying the full retail value of the merchandise.
However, this presumption is not binding on you and you may take into consideration any other evidence in determining whether or not the defendant committed retail theft." (Emphasis added.)
Finally, the defendant contends that her sentence was excessive and that the trial court erred in not stating its reasons for incarcerating her rather than placing her under court supervision. We do not reach this last argument in light of our disposition of the first two contentions.
• 1, 2 Generally, the trial court has discretion in questioning prospective jurors. (94 Ill.2d R. 234.) Although Supreme Court Rule 234 states jurors shall not be questioned "directly or indirectly concern[ing] matters of law or instructions," the Illinois Supreme Court has ruled that when questions go to the "heart of a particular bias or prejudice," such questions must be asked notwithstanding Rule 234. (People v. Zehr (1984), 103 Ill.2d 472, 477, 469 N.E.2d 1062, 1063.) In Zehr, defense counsel tendered the following questions, which the trial court left unasked:
"1. If at the close of all the evidence and after you have heard arguments of counsel you believe that the State has failed to sustain the burden of proof and has failed to prove the defendant guilty beyond a reasonable doubt, would you have any hesitation whatsoever in returning a verdict of Not Guilty?
2. If the defendant, Mr. Zehr, decides not to testify in his own behalf, would you hold it against him?
3. Do you understand that the defendant is presumed innocent and does not have to offer any evidence in his own behalf, but must be proven guilty beyond a reasonable doubt by the ...