Appeal from the Circuit Court of Cook County Honorable Mary Margaret Brosnahan, Judge Presiding. No. 07 CR 14329
JUDGE EPSTEIN delivered the judgment of the court, with opinion.
Justices Fitzgerald Smith and Joseph Gordon concurred in the judgment and opinion.
Defendant Calvert White appeals from a burglary conviction in October 2008 following a jury trial. He maintains he is entitled to a new trial based on the prosecutor's closing argument; the trial court's alleged failure to comply with Supreme Court Rule 431(b) (Ill. S. Ct. R. 431(b), eff. May 1, 2007); and the trial court's allegedly improper admission of defendant's two prior convictions. Defendant further claims the trial court unconstitutionally enhanced his sentence under section 5-5-3(c)(8) of the Unified Code of Corrections (730 ILCS 5/5-5-3(c)(8) (West 2008)), warranting a resentencing. For the reasons stated below, we affirm.
Defendant was arrested for burglary on June 28, 2007, shortly after 1:30 a.m. He took a decoy purse from an unmarked police car. Defendant testified at trial that he took the purse, as well as a carton of cigarettes and a bottle, from the car, believing they belonged to "Slim," someone he knew. Slim allegedly directed defendant to take the items out of the car and watch them while Slim ran into a liquor store that was about to close. Defendant was arrested when he started to cross the street, allegedly intending to merely sit at the bus stop across the street and wait for Slim.
The State called three witnesses. Officer Brian Rodriguez testified that he was part of the burglary investigation on June 28, 2007, that led to defendant's arrest. The area at which defendant was arrested allegedly had an ongoing problem of thefts from cars. Officer Rodriguez's role was to watch the decoy purse that had been placed on the passenger seat of the unmarked police car. The car was approximately 45 to 50 feet away from him, with its windows completely open. Defendant allegedly approached the car, looked inside, backed up, and turned his head from side to side. He then approached the car a second time and removed the purse through the passenger window. Officer Rodriguez did not see defendant talking to anyone nor did he notice anyone around him. Defendant then allegedly placed the purse under his arm and walked away from the car, crossing the street. Officer Rodriguez radioed other officers and described defendant, who was then arrested.
Officer Billy Todde, another member of the investigation team, testified that he parked the unmarked car at the scene, placed the decoy purse on the front seat, lowered the windows, and walked away. He then entered another unmarked car to await further instructions from Officer Rodriguez. After being notified that defendant had taken the purse, Officer Todde returned to the scene and stopped defendant in the middle of the street, about 30 feet from the car. He found the purse in defendant's possession and arrested him.
Officer Mark Schlink, the State's rebuttal witness, affirmed Officer Todde's testimony and added that defendant was carrying only the decoy purse and nothing else. The State also offered, in rebuttal, certified copies of defendant's two misdemeanor retail theft convictions from May 20, 1999, and May 17, 1999 (People's Exhibits 2 and 3). The trial court admitted those convictions, but barred the introduction of defendant's two other misdemeanor theft convictions from 1998 and 1999, finding that the prejudicial impact outweighed the probative value. Defendant's convictions were admitted solely to impeach his testimony. Nonetheless, the prosecutor argued in closing that: "The defendant is a thief, and you know he's a thief because of People's Exhibit No. 2 and People's Exhibit No. 3." Defendant did not object. The trial court later instructed the jurors that:
"Any evidence that was received for a limited purpose should not be considered by you for any other purpose. You should disregard testimony and exhibits which the Court has refused or stricken.
The evidence which you should consider consists only of the testimony of the witnesses and the exhibits which the Court has received.
Opening statements are made by the attorneys to acquaint you with the facts they expect to prove. Closing arguments are made by the attorneys to discuss the facts and circumstances in the case and they should be confined to the evidence and to reasonable inferences that can be drawn from the evidence.
Neither opening statements nor closing arguments are evidence, as we talked about earlier, and any statement or argument made by the lawyers which is not based on any of the evidence should be disregarded.
Evidence of defendant's previous conviction of any offense may be considered by you only as it may effect his believability as a witnesses and must not be considered by you as evidence of his guilt of the offense which is he is charged. "
The jury returned a guilty verdict. Defendant then filed a motion for acquittal and a new trial, arguing that the State had not sustained its burden and that his prior convictions were inadmissible. The motion was denied.
At sentencing, the trial court inquired whether the parties wished to amend defendant's presentencing investigation report (PSI). Defendant declined to do so, and the State corrected two convictions, without any objection. The State then argued in aggravation that a mandatory Class X sentence should be imposed because defendant allegedly had "[a] 1991 conviction for possession for a controlled substance with intent to deliver, which was a class 1. And there is a 1999 conviction for delivery of a controlled substance, which was also a class 1." Although the PSI shows that defendant was convicted for delivery of a controlled substance in 1990, not 1999, defendant's counsel, who argued in mitigation, did not object to the prosecutor's statement or attempt to correct it.
The trial court imposed a Class X sentence, finding:
"In taking into account, there is a lot of misdemeanor convictions in the defendant's history, and its true that he does have five prior felony convictions, the last of which was in, was from a 1990 case, later in 1991, so some 17 years before this case occurred. So I'm taking all of those factors into consideration.
Based upon the defendant's background, I find he is subject to mandatory class X sentencing, based upon the two convictions highlighted by the State. I'll sentence the defendant to six years, the minimum sentence under the law, in the Illinois Department of Corrections."
Defendant did not object to the sentence nor did he file a post-sentencing motion. He nevertheless maintains his sentence was unconstitutionally enhanced, that the trial court erred in admitting his two prior theft convictions, and that it failed to comply with Rule 431(b).
A. Defendant Has Forfeited His Rule 431(b) Claim Amended Supreme Court Rule 431(b) mandates:
"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. Sup. Ct. R. 431(b), eff. May 1, 2007.
As recently explained by our supreme court:
"The language of Rule 431(b) is clear and unambiguous. The rule states that the trial court 'shall ask' potential jurors whether they understand and accept the enumerated principles. While the prospective jurors may be questioned individually or in a group, the method of inquiry must 'provide each juror an opportunity to respond to specific questions concerning the Rule 431(b) principles.' The committee comments emphasize that trial courts may not simply give '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.
Rule 431(b), therefore, mandates a specific question and response process. The trial court must ask each potential juror whether he or she understands and accepts each of the principles in the rule. The questioning may be performed either individually or in a group, but the rule requires an opportunity for a response from each prospective juror on their understanding and ...