IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS FIRST DISTRICT FOURTH DIVISION
September 27, 2007
THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
TERRANCE GILBERT, DEFENDANT-APPELLANT.
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 error is of such a magnitude as to deny him a fair and impartial trial. 134 Ill. 2d R. 615(a); People v. Herron, 215 Ill. 2d 167, 186-87 (2005).
In support of his argument, defendant cites People v. Zehr, 103 Ill. 2d 472 (1984). In Zehr, our supreme court held a trial court erred during voir dire by refusing defense counsel's request to ask questions about the State's burden of proof, the defendant's right not to testify, and the presumption of innocence. Zehr, 103 Ill. 2d at 476-77. The supreme court held that "essential to the qualification of jurors in a criminal case is that they know 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." Zehr, 103 Ill. 2d at 477.
To ensure compliance with Zehr, the supreme court amended Rule 431(b) in 1997 to provide that, "[i]f requested by the defendant," the court shall ask the prospective jurors whether they understand and accept the Zehr principles. 177 Ill. 2d R. 431(b). The rule "seeks to end the practice where the judge makes a broad statement of the applicable law followed by a general question concerning the juror's willingness to follow the law." 177 Ill. 2d R. 431, Committee Comments. The appellate court has held that Rule 431(b) as amended in 1997 "does not require the judge to ask the questions unless defendant's counsel has asked the court to do so." People v. Williams, 368 Ill. App. 3d 616, 623 (2006); see also People v. Foreman, 361 Ill. App. 3d 136 (2005).
However, effective May 1, 2007, the supreme court again amended Rule 431(b), deleting the language "[i]f requested by the defendant" and leaving the remainder of the rule unchanged. Rule 431(b) now reads in pertinent part:
"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." Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007.
Thus, Rule 431(b), as amended effective May 1, 2007 (hereinafter referred to as amended Rule 431(b)), currently imposes a sua sponte duty on the trial court to question each potential juror as to whether he understands and accepts the Zehr principles. Such questioning of the potential jurors is no longer dependent upon a request by defense counsel.
In Envirite Corp. v. Illinois Environmental Protection Agency, 158 Ill. 2d 210, 215 (1994), our supreme court held that where, as here, "the legislature changes the law pending an appeal and where no vested rights are involved, the case must be disposed of by the reviewing court under the law as it then exists, not as it was when the decision was made by the lower court." Although Envirite addressed legislative amendments, its holding also applies to supreme court rules. See People ex rel. Madigan v. Petco Petroleum Corp., 363 Ill. App. 3d 613, 620-21 (2006) (holding that the rules of statutory construction also apply to the interpretation of supreme court rules). Accordingly, the present case must be disposed of by the application of amended Rule 431(b).
The trial court here failed to question the prospective jurors, either individually or in a group, as to whether the jurors understood and accepted the Zehr principles, as required by amended Rule 431(b). Failure to do so was error.
The next issue is whether the trial court's error was harmless or reversible. Constitutional errors, including Zehr errors, may be harmless. See People v. Carreon, 225 Ill. App. 3d 133, 143 (1992). For example, where the trial court erroneously fails to question prospective jurors about their understanding of the defendant's right not to testify, the error is harmless if the defendant in fact testifies at the trial. However, where the defendant here did not testify or put on any witnesses, and instead relied on his presumption of innocence and the State's burden of proving him guilty beyond a reasonable doubt, we decline to hold harmless the trial court's failure to question the prospective jurors regarding their understanding and acceptance of the presumption of innocence, defendant's right not to testify or call any witnesses, and the State's burden of proof. Accordingly, we reverse defendant's conviction and remand for a new trial. See also People v. Brooks, 173 Ill. App. 3d 153 (1988) (similarly reversing and remanding where the trial court did not adequately question the prospective jurors in accordance with Zehr.)
The State contends, though, that the trial court sufficiently complied with amended Rule 431(b) by informing the prospective jurors about the Zehr principles, even though the trial court did not question those prospective jurors about whether or not they understood and accepted those principles. In support, the State cites People v. Williams, 368 Ill. App. 3d 616 (2006). As discussed, Williams interpreted the 1997 version of Rule 431(b), which provided that "[i]f requested by the defendant," the trial court shall ask the prospective jurors whether they understand and accept the Zehr principles. The Williams court held that the 1997 version of Rule 431(b) did not require the trial court to question the potential jurors about the Zehr principles absent a request by defense counsel. The Williams court then addressed Rule 431(a), which provides that the trial court must conduct voir dire examination of prospective jurors by acquainting prospective jurors with the general duties and responsibilities of jurors. Williams, 368 Ill. App. 3d at 623, citing 177 Ill. 2d R. 431(a). The Williams court held that, under Rule 431(a), it is sufficient for the trial court to inform the prospective jurors of the Zehr principles, even if the jurors are not asked whether they understand and accept those principles. Williams, 368 Ill. App. 3d at 626.
Unlike Williams, the present case does not involve Rule 431(a) or the 1997 version of Rule 431(b). Rather, this case involves amended Rule 431(b), which imposes a sua sponte duty on the trial court to question the potential jurors as to whether they understand and accept the Zehr principles. See our discussion above. On the facts of this case, the trial court's failure to so comply with amended Rule 431(b) necessitates reversal and a remand for a new trial.
As a result of our disposition of this case, we need not address the other arguments on appeal.
Reversed and remanded.
GALLAGHER and O'MARA FROSSARD, JJ's concur.
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