date September 20, 2016
from the Circuit Court of Rock Island County, No. 08-CF-1265;
the Hon. Thomas C. Berglund, Judge, presiding.
Agostinelli, of State Appellate Defender's Office, of
Ottawa, and Ron D. Dolak, of Konicek & Dillon, P.C., of
Geneva, for appellant.
Terronez, State's Attorney, of Rock Island (Terry A.
Mertel and Gary F. Gnidovec, both of State's Attorneys
Appellate Prosecutor's Office, of counsel), for the
JUSTICE HOLDRIDGE delivered the judgment of the court, with
opinion. Presiding Justice Carter and Justice O'Brien
concurred in the judgment and opinion.
conviction for unlawful possession of a controlled substance
was reversed and the cause was remanded for a new trial where
the trial court failed to comply with Supreme Court Rule
431(b) when the court did not ask certain members of the jury
about some of the Zehr principles, and although defendant
failed to preserve her objection to the procedure, the
“conventional” plain error analysis was applied,
and based on the closely balanced evidence, the clear and
obvious error was found to have prejudiced defendant.
1 After a jury trial, the defendant, Janet Vesey, was
convicted of unlawful possession of a controlled substance.
720 ILCS 570/402(c) (West 2008). She appeals her conviction
and argues that she is entitled to a new trial because the
trial court failed to comply with Illinois Supreme Court Rule
431(b) (eff. May 1, 2007). We reverse and remand.
3 I. Discovery of the Controlled Substance
4 On December 23, 2008, the defendant and her sister had
spent the day finishing their Christmas shopping. They had
also visited Walmart so the defendant could try on bras and
girdles for an event that the defendant had to attend the
following January. During the early morning hours of December
24, they were pulled over by Officer Ibrahim Ramirez. Ramirez
pulled the defendant over because the vehicle's license
plates were suspended. During the traffic stop, the defendant
admitted to the officer that her driver's license was
suspended. She was arrested, and the officer performed a
limited pat-down on her, which mainly consisted of checking
her pockets for weapons.
5 The defendant was taken to the Rock Island County jail, and
she was turned over to correctional officer Michelle Haun.
Haun took the defendant to a small room so that she could
have some privacy while changing into jail-issued clothing.
Haun testified that she looked in the room before taking the
defendant in. As the defendant was removing her bra, Haun
heard a noise and the defendant say "[t]hat's not
mine, [t]hat's not mine!" Haun described the noise
as a "light little thud." Looking down, she saw a
bag on the floor that contained a white substance and a
6 According to the defendant, she was strip searched when she
was taken into the small room. After she had changed into the
jumpsuit, she bent over to put on flip-flops and saw the bag
on the floor. She told Haun about the bag because she did not
want to be blamed for it later. Haun said that it must have
fallen from the defendant's bra and gave the bag to
another officer. The substance tested positive for cocaine.
7 II. Voir Dire
8 The trial of this matter took place on April 23, 2009. The
trial court conducted voir dire by calling panels of
four prospective jurors at a time. During the first panel,
the court asked:
"Do each of you folks understand that the defendant is
presumed innocent at this point and has a right to ...