Appeal from the Circuit Court of Cook County. Honorable Kenneth J. Wadas, Judge Presiding.
The opinion of the court was delivered by: Justice Salone
JUSTICE SALONE delivered the judgment of the court, with opinion. Presiding Justice Lavin and Justice Sterba concurred in the judgment and opinion.
A jury found defendant, Tyrone Brewer, guilty of first degree murder and that he personally discharged a firearm that proximately caused the victim's death. Defendant was subsequently sentenced to 50 years' imprisonment on the first-degree murder-conviction and an additional consecutive 30 years' imprisonment for personally discharging a firearm that caused the victim's death. On appeal, this court reversed defendant's conviction and sentence, finding that the trial court's violation of Supreme Court Rule 431(b) (eff. May 1, 2007) required a new trial. People v. Brewer, No. 1-07-2821 (2010) (unpublished order under Supreme Court Rule 23).
In Brewer, we applied the plain error analysis to determine if defendant had forfeited his claim that the trial court failed to fully comply with Rule 431(b). Ill. S. Ct. R. 615(a); see People v. Herron, 215 Ill. 2d 167, 187 (2005) (the court may consider a forfeited error "when either (1) the evidence is close, regardless of the seriousness of the error, or (2) the error is serious, regardless of the closeness of the evidence").
After determining that error had occurred, this court concluded that the failure to fully comply with Rule 431(b) denied defendant a substantial right and a fair trial and obviated the need to inquire into the prejudice of the defendant. Brewer, slip op. at 16. As the error constituted plain error under the second prong of the plain error analysis, the defendant's claim of error was not forfeited, and he was entitled to a new trial. We noted, however, that our supreme court had yet to construe the 2007 version of Rule 431(b) at issue in this case. See Brewer, slip op. at 16.
On January 26, 2011, our supreme court denied the State's petition for leave to appeal but entered a supervisory order directing this court to vacate and reconsider its judgment in light of People v. Thompson, 238 Ill. 2d 598 (2010). People v. Brewer, No. 110429 (Ill. Jan. 26, 2011). In accordance with the supervisory order, we vacated our judgment in Brewer.
Defendant requested and was granted leave to provide a supplemental brief on this issue. While he does not contend that the error resulted in a biased jury, defendant does, however, maintain that the closeness of the evidence requires a finding of plain error under the first prong of the plain error analysis. Specifically, defendant contends that the Thompson decision only applies to plain error under the second prong and thus review of the Zehr violation is not forfeited for purposes of appeal. We disagree.
In Thompson, our supreme court construed the 2007 version of Rule 431(b) and held that1-07-2821 "[a] violation of Rule 431(b) does not implicate a fundamental right or constitutional protection, but only involves a violation of th[e] court's rules." Thompson, 238 Ill. 2d at 614-15. As such, the court concluded that despite its amendment to the rule, it could not conclude that Rule 431(b) questioning was indispensable to the selection of an impartial jury. Thompson, 238 Ill. 2d at 615. The supreme court further found that defendant failed to establish that the trial court's violation of Rule 431(b) resulted in a biased jury and that defendant had not met his burden of showing that the error affected the fairness of the trial or challenged the integrity of the judicial process, as the prospective jurors received some of the required Rule 431(b) questioning and the venire was admonished and instructed on Rule 431(b) principles. Thompson, 238 Ill. 2d at 615. The court then rejected defendant's request for plain error review under the second prong. Thompson, 238 Ill. 2d at 615.
As indicated previously, defendant argues that the evidence in the case at bar is closely balanced. Defendant notes that during jury deliberations, the jury sent out two notes containing five questions. Additionally, he contends that there was no physical evidence tying him to the offense and his conviction turned on several conflicting accounts. First, defendant argues that defense witness Roy Ferguson, who knew both defendant and co-defendant Rashaune Finley, testified that defendant was not present. Further, defendant notes that Kimberly Smith, who was in the car with the victim at the time of the shooting, identified Finley as the shooter in a lineup where both defendant and co-defendant were present. Additionally, defendant argues that co-defendant Finley's identification of him as the shooter is suspect because his testimony was given in exchange for a lower sentence in his own case. Finally, defendant argues that his own inculpatory statement was the product of his unmedicated and post-traumatic state. Collectively, defendant concludes that these factors establish the closeness of the evidence.
Where as here, a defendant fails to object to an error at trial and include the error in a posttrial motion he forfeits ordinary appellate review of that error. People v. Johnson, 238 Ill. 2d 478, 484 (2010) (citing People v. Enoch, 122 Ill. 2d 176, 186 (1988)). Consequently, defendant forfeited, or procedurally defaulted, his challenge to the Zehr violation by failing to object and raise his claim in a posttrial motion.
Under Illinois' plain error doctrine, however, a reviewing court may consider a forfeited claim 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 strength of the evidence.' " Johnson, 238 Ill. 2d at 484 (quoting People v. Piatkowski, 225 Ill. 2d 551, 565 (2007) (citing People v. Herron, 215 Ill. 2d 167, 186-87 (2005))). The doctrine is intended to ensure that a defendant receives a fair trial, but it does not guarantee every defendant a perfect trial. Johnson, 238 Ill. 2d at 484. Rather than operating as a generalsavings clause, it is construed as a narrow and limited exception to the typical forfeiture rule applicable to unpreserved claims. Johnson, 238 Ill. App. 3d at 484.
Our court typically undertakes plain error analysis by first determining whether error occurred at all before proceeding to consider whether either prong of the doctrine has been satisfied. People v. Sargent, 239 Ill. 2d 166, 189-90 (2010). The burden of persuasion rests with the defendant under both prongs of the plain error analysis. Sargent, 239 Ill. 2d at 190. However, the ultimate question of whether a forfeited claim is reviewable as plain error is a question of law that is reviewed de novo. Johnson, 238 Ill. 2d at 485.
Under the first prong of plain error, which defendant argues here, the defendant must show that the evidence was "so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error." Piatkowski, 225 Ill. 2d at 565. The question of whether the evidence is closely balanced is distinct from a challenge to the sufficiency of the evidence. Piatkowski, 225 Ill. 2d at 566. Defendant, along with co-defendants Rashaune Finley and Terrell Ivy, was charged of first degree murder and attempted armed robbery of the victim, Jeremy McEwen.
The State's evidence established that the victim was fatally shot on June 26, 2001, near 8800 South Clyde in Chicago just prior to 10:15 p.m. Kimberly Smith, who was a friend of the victim's and was in the car with him at the time of the shooting, testified that she saw two men approach the car, one wearing a black hoodie and the other in a red shirt. She stated that the shooter wore the black hoodie and after announcing a "stick up" fired once in the air before firing at the victim's chest when the victim attempted to drive away. Smith heard the victim say "T-Man." Smith later identified the man in the red shirt in a lineup as the lookout. Joseph Fields, who was at a nearby park, heard a "pop" that night, which he initially thought was a firecracker. He then saw the victim's car before hearing a "boom and a bang." He and another man then began walking towards 88th Street. Fields saw two men near 87th and Clyde, one in a red shirt and one wearing a black hoodie. Antwan Sneed testified that he was at the same park, he heard a loud pop, saw the victim's car speeding down the street and subsequently lose control near 88th and Clyde. Sneed ran to the car and saw "two dudes in hoodies walking into the dark." One of the men was wearing a black hoodie and Sneed identified defendant, whom he knew as "T-Man," as the man in the black hoodie. When Sneed yelled "T-Man" several times, defendant picked up his pace and ran away. Two men unsuccessfully chased him. Former Assistant State's Attorney (ASA) Patrick Brosnan testified that he took defendant's inculpatory handwritten statement on June 28, 2001, which was published to the jury. Detective Patrick Golden testified that when defendant was arrested, he implicated himself and co-defendants in the murder. Co-defendant Finley testified that he, defendant, and co-defendant Ivy were all friends. On the evening of the shooting, Finley saw defendant with a "45 or 9 millimeter gun" and while they were in a gas station, defendant saw the victim in his car. Defendant told Finley and Ivy that the victim had paid for drugs with counterfeit money. The three followed the victim's car to 89th & Clyde when defendant exited the car with the gun in his pocket. Defendant and Finley approached the victim's car from the back, and defendant stopped at the driver's side. Finley, while acting as the lookout, saw defendant fire one shot into the air while talking to the victim. When the victim began to drive off, defendant shot inside the victim's car and hit him. At that time, Finley ranaway. Defendant also ran away and took off the hoodie and wrapped the gun in it. Finley was arrested on June 27, 2001, and gave his videotaped statement at that time. Detective Russell Sutherland interviewed defendant, who said that Finley and Ivy planned the robbery, but he later stated that he fired into the victim's car. Defendant gave a handwritten statement on June 28, 2001. Dr. James Cogan, the assistant medical examiner, reviewed the autopsy results of the victim, which reflected cause of death as a gunshot wound to the chest.
Roy Ferguson testified on defendant's behalf. He stated that he had known defendant for approximately 10 years and also knew Finley. Ferguson was sitting in his car near the park on June 26, 2001, and saw Finley walk up to a white car, put a hood on and shoot two or three times into the car. Finley then ran through the park. Ferguson never saw defendant that night. Debra Pearson, an investigator for the public defender's office, stated that she spoke with Kimberly Smith on the ...