Appeal from the Circuit Court of Cook County No. 09 CR 4166 Honorable Vincent M. Gaughan, Judge Presiding.
The opinion of the court was delivered by: Justice Sterba
JUSTICE STERBA*fn1 delivered the judgment of the court, with opinion. Justices Neville and Salone*fn2 concurred in the judgment and opinion.
Following a jury trial, defendant Eric Radcliff was found guilty of possession of a stolen motor vehicle and burglary, and judgment was entered only on the charge of possession of a stolen motor vehicle, on which he was sentenced to nine years in prison. On appeal, Radcliff contends that his conviction should be reversed and the cause remanded for a new trial because the judge was absent from the bench while defense counsel cross-examined a State witness and the court failed to question prospective jurors in compliance with Illinois Supreme Court Rule 431(b) (eff. May 1, 2007). Radcliff also challenges the fines and fees order entered against him. Because the circuit court's admonitions to potential jurors did not comply with Rule 431(b), this court reversed Radcliff's conviction and sentence and remanded for a new trial in a Rule 23 order filed August 5, 2010 (People v. Radcliff, No. 1--09--1400 (2010) (unpublished order under Supreme Court Rule 23)). On January 26, 2011, the Illinois Supreme Court issued a supervisory order directing this court to vacate its order and reconsider in light of People v. Thompson, 238 Ill. 2d 598 (2010). People v. Radcliff, 239 Ill. 2d 577, 578 (2011). For the reasons that follow, we reverse Radcliff's conviction and sentence.
At trial, Chicago police officer Michael Coughlin testified that on February 6, 2009, he was working with a group of officers as part of a covert auto theft team that had planned to place a bait vehicle in an area of high auto thefts to curb such thefts in that area. The bait vehicle was equipped with window and trunk sensors, internal cameras and microphones, a computer system that could lock the doors and ignition, and a GPS system. About 8:45 p.m., Officer Coughlin drove the bait vehicle, a silver 2006 Mercury Milan, in an erratic manner to give the impression that he was inebriated. Officers Delcason and Salvador followed Officer Coughlin in a marked squad car, activated their lights and siren, and curbed the bait vehicle at the intersection of 63rd and Carpenter on the south side of Chicago.
At this point, Officer Coughlin saw approximately six individuals standing on a nearby corner, including Radcliff. Officers Dalcason and Salvador then pretended to arrest Officer Coughlin, who acted belligerent and caused a scene, and handcuffed him and took him into custody while leaving the bait vehicle on the street. When the officers left the vehicle, the keys were on the center console, the doors were unlocked, and the front driver and passenger side windows were halfway open. Officer Coughlin was then taken to the intersection of 61st and Morgan, where he joined Officer Sheetz.
Officer Don Cornelious testified that on the night of February 6, 2009, he was acting as the surveillance officer for the covert auto theft team. Officer Cornelious set up a point of surveillance at 63rd and Carpenter and remained in radio contact with the other team members. From his surveillance point, Officer Cornelious observed Radcliff standing across the street from the bait vehicle in a group of approximately six people. Radcliff walked to the vehicle, leaned inside, and fumbled around for about a minute before returning to the group. Shortly thereafter, Radcliff returned to the vehicle and unsuccessfully attempted to open the trunk, then returned to the group. About 15 minutes later, Radcliff entered and started the vehicle, then drove away.
During cross-examination, defense counsel questioned Officer Cornelious regarding the contents of the vehicle theft case report of the incident, and he stated that he could not remember "word for word" what was in the report. Defense counsel asked Officer Cornelious if anything would refresh his recollection, and he responded that the report would. At this point, the judge presiding over the trial said "[c]counsel, excuse me, you can show him the report. One thing I have to take care of." The judge then left the bench. While the judge was away, defense counsel asked Officer Cornelious if he remembered what the incident report he was using to refresh his recollection was about, and if it was from the date of the incident, and Officer Cornelious responded that it was from that day. Defense counsel then said "[w]hy don't you take a look at it until the judge gets back." Defense counsel resumed questioning Officer Cornelious after the judge returned to the bench.
Sergeant James Kolodziej testified that his role in the covert operation was to sit in an unmarked car with a laptop computer that controlled the bait vehicle. Once the bait vehicle was in position, Sergeant Kolodziej activated the system that would "arm" the vehicle. Once the vehicle was armed, messages would be sent to the computer about what was happening with the vehicle. Sergeant Kolodziej received a message that a door had been opened, but the vehicle remained in the same location. About 15 minutes later, he received another message that a door had been opened. He then received a "door closed" message, followed by an "ignition on" message. Using the GPS tracking system, Sergeant Kolodziej saw that the bait vehicle turned north on Aberdeen. He notified Officers Coughlin, Sheetz, Dalcason and Salvador of the vehicle's location. Once the officers communicated to Sergeant Kolodziej that they were in position to stop the vehicle, he sent a command to shut off the ignition and disable the vehicle. Radcliff was the only person in the vehicle, and Officer Coughlin placed him under arrest.
Radcliff testified that about 8:40 p.m. on February 6, 2009, he stopped at a liquor store at 62nd and Carpenter on his way from his sister's house to his girlfriend's house. Radcliff had planned on taking a bus from the liquor store to his girlfriend's house and encountered his friend Kenny outside of the liquor store. Kenny asked Radcliff if he needed a ride somewhere and offered him the use of a car so long as he returned it. Kenny handed Radcliff a set of keys for a car parked across the street, and Radcliff entered the car and drove away until he was stopped by police. Radcliff explained that he had planned on returning the vehicle when he had finished using it.
The State called Officer Richard Salvador in rebuttal, who was part of the covert auto theft team, and corroborated the testimony of the other officers regarding the incident and Radcliff's arrest. The State also recalled Officer Coughlin, who testified that he conducted an interview with Radcliff at the police station about 9:30 p.m. on February 6, 2009, during which Radcliff stated that Kenny told him that the police had locked up a white male and left the keys in the car, and then gave him the keys in exchange for a beer.
The jury found Radcliff guilty of possession of a stolen motor vehicle and burglary. The circuit court entered judgment only on the count of possession of a stolen motor vehicle and sentenced Radcliff to nine years in prison.
We first address Radcliff's contention that this court must reverse his conviction and remand for a new trial because the circuit court's admonitions to the prospective jurors did not comply with Rule 431(b). Our review of the interpretation of a supreme court rule is de novo. People v. Suarez, 224 Ill. 2d 37, 41-42 (2007).
In People v. Zehr, 103 Ill. 2d 472, 477 (1984), our supreme court held that it was essential to the qualification of jurors in a criminal case 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. Rule 431(b) codifies the court's holding in Zehr, and the version of the rule that was in effect when Radcliff's trial occurred provided:
"(b) 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 ...