Appeal from the Circuit Court of Cook County No. 06 CR 27445 Honorable Thomas P. Fecarotta, Jr., Judge Presiding.
The opinion of the court was delivered by: Judge Epstein
JUDGE EPSTEIN delivered the judgment of the court, with opinion.*fn1 Justices Joseph Gordon and Howse concurred in the judgment and opinion.
In this case, we must consider whether the trial judge gave adequate attention to a pro se defendant's posttrial claim of ineffective assistance of counsel. Following a jury trial, defendant, Daniel Vargas, was found guilty of first degree murder, attempted first degree murder, and aggravated discharge of a firearm and ultimately sentenced to concurrent terms of 50, 26, and 6 years' imprisonment. On appeal, he contends: (1) the trial court's examination of the venire was insufficient; (2) the State's closing argument was improper; (3) his pro se allegations of ineffective assistance of counsel were not adequately addressed; (4) his conviction for aggravated discharge of a firearm violated the one-act, one-crime rule; and (5) improper fines were assessed against him. The State concedes: (1) the conviction for aggravated discharge of a firearm violates 1-08-0383 the one-act, one-crime rule; and (2) certain of the fines imposed were improper.
On November 20, 2009, this court remanded the case with directions. People v. Vargas, 396 Ill. App. 3d 465, 932 N.E.2d 173 (2010). On January 26, 2011, the Illinois Supreme Court denied defendant leave to appeal, but entered a supervisory order directing this court to vacate its judgment and reconsider the appeal in light of People v. Thompson, 238 Ill. 2d 598, 939 N.E.2d 403 (2010); People v. Vargas, 239 Ill. 2d 584, 940 N.E.2d 1149 (2011) (table). Accordingly, we vacate our prior judgment and reconsider defendant's appeal. For the following reasons, we again remand with directions.
The events giving rise to defendant's prosecution occurred on November 5, 2006, in Streamwood, Illinois, when Anthony (Tony) Brown was fatally shot. Defendant, along with David Luna-who is not a party to this appeal-was subsequently charged with first degree murder, attempted murder, and aggravated discharge of a firearm. As no challenge is made as to the sufficiency of the evidence, we describe those facts necessary for a general understanding.
The trial evidence disclosed that on November 5, 2006, Luna sought to purchase one-half pound of marijuana from Joseph Benitez for $2,000. Defendant drove to the meeting with Joseph accompanied by Luna, a woman, and defendant's baby. Joseph rode with them to a parking lot in Schaumburg where Luna gave him money for the marijuana. Joseph exited the car and walked to where he said he was to meet another man to get the marijuana, but the person was not there. Joseph counted the money and discovered there was only $1,350. Joseph then walked into a grocery store, called a cab, and returned to his home, arriving shortly after 7 p.m. Thereafter, Luna called Joseph and was told the money for the purchase was short and that Luna would have to wait 15 to 20 minutes or until the following day to get the marijuana.
Around 9 p.m., Joseph was in his yard with his friend Tony Brown when defendant and Luna arrived. Tony knew generally about the situation between Joseph, Luna, and defendant. Michael Benitez, Joseph's brother, answered the door. Joseph saw defendant and Luna in the driveway adjacent to the garage. Joseph asked Luna to wait 15 to 20 minutes for his mother to go to sleep so she would not hear what Joseph was doing. Joseph planned to return the $1,350.
Joseph approached defendant and Luna with Tony following, and defendant pointed a gun at Joseph and demanded his money, but ultimately put the gun down. When defendant pulled the gun on Joseph, Tony alerted Michael to the situation and Michael came out of the house indicating that he would go get what defendant wanted. Defendant responded, "No one is going inside."
Defendant then attempted to run into the house, but Tony grabbed him and tried to prevent defendant's entry and, as he did, defendant drew the gun and shot Tony from less than one foot away. Tony was struck in the chest and stumbled to the side and was shot again, this time in the back. Defendant shot Tony a third time and ran out of the garage. Joseph denied that Tony ever struck defendant and maintained that Tony only tried to block defendant's entry. Michael, however, testified that Tony struck defendant on the side of the face as defendant "stepped up" after Tony tried to grab defendant or put him in a bear hug.
As Joseph checked on Tony's condition, he heard two additional shots fired outside the garage. Those shots were fired at Michael, who chased after defendant. According to Michael, he heard four shots in the garage. Then, defendant ran out of the garage, threatened to kill Michael, and fired a shot past Michael's head from a distance of about four feet. Luna and defendant then drove off.
Defendant was ultimately arrested and agreed to speak to investigators. He engaged in a conversation that was memorialized on videotape and shown, in relevant part, to the jury that substantially corroborated the eyewitness testimony. Defendant did not testify.
Following arguments and instructions, the jury found defendant guilty. He was subsequently sentenced to concurrent terms of imprisonment of 50 years for first degree murder, 26 years for attempted murder, and 6 years for aggravated discharge of a firearm.*fn2 Defendant now appeals.
As noted, defendant does not challenge the sufficiency of the evidence. His first two claims of error relate to the trial judge's questioning of the venire during jury selection and the State's closing argument. Defendant did not object to either contemporaneously. Moreover, only his complaint as to the closing argument was specifically included in his posttrial motion. Consequently, the State contends these claims are forfeited.
It is axiomatic that in order to preserve issues for review a defendant must object at the time of the claimed error as well as in a posttrial motion. People v. Lewis, 234 Ill. 2d 32, 40, 912 N.E.2d 1220, 1225 (2009); see also 725 ILCS 5/116-1 (West 2006). The failure to do so will generally result in forfeiture of the claim on appeal; however, forfeiture is not an absolute bar to our review. Precedent dictates that the rules of forfeiture present limitations on the parties and not on the reviewing court. People v. Davis, 213 Ill. 2d 459, 470, 821 N.E.2d 1154, 1161 (2004).
Additionally, Illinois Supreme Court Rule 615(a), known as the "plain-error" doctrine, carves out an exception to permit review of issues otherwise procedurally defaulted. Lewis, 234 Ill. 2d at 42, 912 N.E.2d at 1226-27. Our supreme court described its operation in People v. Piatkowski:
"[T]he plain-error doctrine allows a reviewing court to consider unpreserved error when (1) a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence." People v. Piatkowski, 225 Ill. 2d 551, 565, 870 N.E.2d 403, 411 (2007) (citing People v. Herron, 215 Ill. 2d 167, 186-87, 830 N.E.2d 467, 479 (2005)). Importantly, "plain error is not limited to cases where the putative error causes the conviction of an innocent person; it also applies to cases where the putative error affects the fairness or integrity of the trial." Herron, 215 Ill. 2d at 186, 830 N.E.2d at 479.
Rule 615 specifically provides that, "Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded." Ill. S. Ct. R.615(a). "Essentially, the fairness of the trial must be undermined." People v. Keene, 169 Ill. 2d 1, 17, 660 N.E.2d 901,910 (1995). Defendants bear the burden of persuasion under each prong of the doctrine. People v. Naylor, 229 Ill. 2d 584, 593, 893 N.E.2d 653, 659 (2008). Where a defendant is unable to establish plain error, it is incumbent upon us to honor the procedural default. Keene, 169 Ill. 2d at 17, 660 N.E.2d at 910.
Necessarily, we must first determine whether an error actually occurred. Lewis, 234 Ill. 2d at 43, 912 N.E.2d at 1227 (citing People v. Walker, 232 Ill. 2d 113, 124, 902 N.E.2d 691, 697 (2009)). We, therefore, consider the substance of each of defendant's claims of error. Walker, 232 Ill. 2d at 125, 902 N.E.2d at 697; Lewis, 234 Ill. 2d at 43, 912 N.E.2d at 1227.
Defendant first asserts that the trial court erred in its questioning of potential jurors pursuant to Illinois Supreme Court Rule 431(b) (eff. May 1, 2007), the so-called Zehr principles. See People v. Zehr, 103 Ill. 2d 472, 469 N.E.2d 1062 (1984). Specifically, defendant contends the trial court's approach was insufficient as to the fourth principle, namely, that a defendant's choice not to testify could not be held against him. According to defendant, this deficiency was especially prejudicial in light of his claim of self-defense.
Defendant concedes that he did not object to the trial court's method of voir dire and did not raise the issue in a posttrial motion. He contends, however, that noncompliance with Rule 431(b) is so serious that it constitutes plain and reversible error, regardless of the weight of the evidence against him. ...