Appeal from the Circuit Court of Cook County. No. 03 CR 22601. Honorable Evelyn B. Clay, Judge Presiding.
The opinion of the court was delivered by: Justice O'brien
Defendant, Terrance Gilbert, appeals his conviction for burglary and his eight-year sentence of imprisonment. On appeal, defendant contends that: (1) the trial court erred by failing to question prospective jurors about their understanding of the presumption of innocence, the prosecution's burden of proof, and defendant's right not to testify or call any witnesses; and (2) the trial court erred by failing to order a fitness hearing. We reverse and remand for a new trial.
Defendant was charged with burglary. At the outset of voir dire, the trial court informed the prospective jurors, en masse, that defendant was presumed innocent of the charges, that it was the State's burden to prove his guilt beyond a reasonable doubt, and that defendant had no obligation to testify or call any witnesses. The trial court did not otherwise question the prospective jurors, either individually or in a group, as to whether they understood and accepted those principles. Defense counsel questioned one potential juror about whether she understood that the burden of proof was different in a civil case than in a criminal case, and asked another potential juror whether she knew that the burden on the State is beyond a reasonable doubt. Defense counsel otherwise did not question the prospective jurors about the presumption of innocence, the State's burden of proof, and the defendant's right not to testify or call witnesses. Nor did counsel ask the court to do so. A jury was empaneled.
At trial, Officer Matthew Fogarty, a special agent for the Norfolk Southern Railway, testified that on September 29, 2003, he was conducting surveillance of the scale track at 53rd and Wallace Streets. The scale track is a lot enclosed with an eight-foot fence topped with razor wire. Inside of the scale track are railroad shipping containers, 40-foot long semi-trucks that can be lifted off trains and put onto ships or railcars for transport. Fogarty testified that the door handles of all the containers were locked in place and sealed to prevent anyone from opening the doors.
Fogarty testified that from a distance of approximately 200 feet, he saw the defendant holding yellow bolt cutters as he entered the scale track through a hole in the fence. As he approached defendant, Fogarty heard what he described as the unique sound of multiple containers being opened. When he was approximately 40 feet away, Fogarty heard two more containers being opened, followed by the sound of boxes being dragged. After hearing this noise, Fogarty saw defendant come out from behind a container carrying two large boxes. Defendant also had the bolt cutters in his hand. Fogarty observed defendant go back through the hole in the fence and walk down some Metra tracks.
Fogarty testified that he followed defendant. When defendant saw him, he dropped the boxes and started running westbound toward Lowe Park. Fogarty pursued defendant on foot and radioed to other railway police officers for assistance. From approximately 30 feet away, Fogarty saw defendant throw the bolt cutters on the service road next to the Metra tracks and jump off the retaining wall into Lowe Park.
Fogarty testified that he observed defendant run across the park as several officers chased him. An unmarked police car pulled up in front of defendant, and defendant was taken into custody. Fogarty went back to the tracks and retrieved the bolt cutters and the boxes that defendant had dropped. The boxes contained 12 dozen baseball caps valued at just over $800.
Fogarty testified that at the police station, he and Detective Cruz spoke with defendant. Detective Cruz read defendant his Miranda rights, and defendant admitted to the burglary.
On cross-examination, Fogarty testified that he did not observe the defendant open any of the containers, nor did he observe the defendant pull the boxes of baseball caps out of the containers. Fogarty did not send the bolt cutters or boxes to the crime lab for fingerprint identification. Fogarty also testified that defendant did not make a written, videotaped or court-reported statement, and did not sign a confession.
Office Joseph Fitzgerald testified that he was one of the officers who stopped defendant in Lowe Park. After a chase, defendant threw his arms up, said, "Ya'll got me" and lay down without further instruction.
Fitzgerald testified on cross-examination that he did not see the defendant carrying anything, and that after searching the defendant, he did not find anything relative to the alleged burglary. Fitzgerald testified that he did not see the defendant steal anything or attempt to steal anything.
Defendant did not testify and the defense did not call any witnesses. Before deliberations, the trial court instructed the jury that defendant is presumed innocent of the charge against him, that the State has the burden of proving defendant's guilt beyond a reasonable doubt, that defendant is not required to prove his innocence and that defendant's decision not to testify must not be considered in any way in arriving at a verdict. The jury found defendant guilty of burglary. The trial court sentenced defendant to eight years' imprisonment.
On appeal, defendant contends that the trial court erred in failing to sua sponte question the potential jurors during voir dire about their understanding and acceptance of the constitutional principles related to the presumption of innocence, the State's burden of proof, and defendant's right not to testify or present any evidence. The State contends defendant waived review by failing to raise an objection at trial (People v. Enoch, 122 Ill. 2d 176, 186 (1988)); however, we address defendant's argument under the plain error exception to the waiver rule as the claimed ...