September 27, 2011
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
JANET VESEY, Defendant-Appellant.
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 have a
And the presumption of innocence, folks, remains with the
defendant throughout the entire case, and it's not
overcome unless the State is able to show her guilt beyond a
reasonable doubt. Do each of you understand that?
And do each of you understand that the defendant is presumed
innocent and has a right to rely on that presumption of
innocence and has a right to put on no evidence whatsoever if
she wants to. Do each of you understand that?
And if the defendant would choose not to put on any evidence,
that fact could not be considered by you in judging her guilt
or innocence. Do each of you understand that?
Do any of you have any quarrels or disagreements with any of
these propositions of law?"
9 The State and the defendant accepted all four individuals
on the jury. The trial court then called the second panel and
"And do all of you understand the burden of proof issues
that we have been talking about? In other words, at this
point the defendant is presumed innocent of the charge and
she is entitled to rely on that presumption of innocence
throughout the entire case. Do each of you understand that?
And do each of you understand that presumption of innocence
is not overcome unless the State is able to prove her guilt
beyond a reasonable doubt? Do each of you understand
defense attorney also inquired of the second panel:
"Does anyone feel as though myself or Ms. Vesey has
anything that they have to prove here today? Anyone? Raise
your hand if you think that we do?
If I were to sit here, and obviously I'm not going to,
I've obviously expressed that I'm going to be calling
some witnesses, and stare at the ceiling tile and not call
any witnesses, would you think that I have done something
* * *
Does anybody feel as though-my question here is to make sure
you understand that my client as she sits here today is an
innocent person. She does not have to prove anything. That
the entire burden of proof remains on the State. Does anybody
have a problem with that?"
10 Three of the four panel members were accepted onto the
jury. The next prospective juror was questioned individually
by the trial court and the attorneys, and he was accepted
onto the jury. The trial court asked him if he understood the
principles of reasonable doubt and the presumption of
innocence. This juror was not asked if he accepted those
principles of law.
11 The last four jurors that eventually made it onto the jury
were all asked if they understood the presumption of
innocence and the fact that the State had to prove the
defendant guilty beyond a reasonable doubt. Those jurors were
also asked if they had any quarrels with those principles of
12 After the trial, all of the jurors were instructed on the
presumption of innocence and the burden of proof. The jury
found the defendant guilty, and she was sentenced to 24
months of probation. She appealed.
14 The defendant argues that she was denied the right to a
fair trial because the trial court failed to strictly comply
with Rule 431(b). Ill. S.Ct. R. 431(b) (eff. May 1, 2007).
The defendant admits that she did not object to this error
during trial, or raise the issue in a posttrial motion, and
that failure to do so ordinarily results in forfeiture of the
issue. People v. Schaefer, 398 Ill.App.3d 963
(2010). Therefore, in order for the defendant to succeed in
her argument, the trial court must have committed plain
error. People v. Herron, 215 Ill.2d 167 (2005).
Under the plain error rule, we will remand for a new trial
only if: (1) the evidence is closely balanced; or (2) the
error was so serious it denied the defendant a fair trial.
Herron, 215 Ill.2d 167.
15 Rule 431(b) provides:
"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." (Emphases added.)
Ill. S.Ct. R. 431(b) (eff. May 1, 2007).
16 In this case, error occurred because certain members of
the jury were not asked about some of these principles. No
member of the jury was asked whether he or she understood and
accepted that the defendant's refusal to testify could
not be held against her. In addition, 4 of the 12 jurors were
not asked by the trial court if they accepted the presumption
of innocence or the State's burden of
proof. The trial court's failure to properly
question jurors under Rule 431(b) constitutes noncompliance
with the rule. People v. Thompson, 238 Ill.2d 598
17 The issue then becomes whether the error warrants a new
trial. The defendant first argues that she is entitled to a
new trial because the evidence in this case is closely
balanced. The defendant points out that she presented four
witnesses at trial while the State only offered two. In
addition, the trial largely came down to Haun's word
against the defendant's. This suggests that the evidence
was closely balanced because there was no corroborating
evidence of guilt and defendant's verdict was decided by
who the jury found more credible. See People v.
Naylor, 229 Ill.2d 584, 608 (2008) (holding that
evidence was closely balanced where "[t]he evidence
boiled down to the testimony of *** two police officers
against that of the defendant").
18 In Herron, the court stated that where there is
error in a closely balanced case it is important to err on
the side of fairness so as to not convict an innocent person.
Herron, 215 Ill.2d 167. Once the defendant proves
that there was an error and that the evidence was closely
balanced, the error is considered prejudicial. Id.
The Herron court explained:
"If the defendant carries the burden of persuasion and
convinces a reviewing court that there was error and that the
evidence was closely balanced, the case is not cloaked with a
presumption of prejudice. The error is actually prejudicial,
not presumptively prejudicial." Herron, 215
Ill.2d at 193.
See also People v. Piatkowski, 225 Ill.2d
551, 564-65, 568, 571-72 (2007).
19 In People v. White, 2011 IL 109689, our supreme
court noted that a defendant may obtain reversal of his
conviction under the closely-balanced-evidence prong of plain
error only if he can show that he was prejudiced by the
alleged error. White, 2011 IL 109689, ¶ 133.
However, in our view, this does not alter the rule
established in Herron, i.e., that a defendant may
show prejudice (and therefore obtain reversal of his
conviction) merely by showing that the trial court committed
an error and that the evidence was closely balanced. In
White, the supreme court held that the evidence was
not closely balanced. White, 2011 IL
109689, ¶¶ 134-42. Thus, under the rule set forth
in Herron, the White court reasonably
concluded that the defendant had failed to prove that the
error alleged by the defendant was prejudicial.
White does not upend the established principle that
if a defendant shows that there was error and that the
evidence was closely balanced (as the defendant has done in
this case), the error is both prejudicial and reversible and
no further showing of actual prejudice is required. Thus,
although White states that a defendant alleging
plain error under the closely-balanced-evidence prong must
"show that he was prejudiced" (White, 2011
IL 109689, ¶ 133), a defendant may show such prejudice
merely by showing that an error occurred and that the
evidence was closely balanced. Herron, 2152d at 193.
20 However, although White's holding is
consistent with the traditional plain error analysis applied
in Herron, certain statements in White
appear to be in tension with that analysis. For example,
White compares the showing of prejudice required in
plain error cases to the showing of prejudice required in
cases involving claims of ineffective assistance of counsel
based on evidentiary error. White, 2011 IL 109689,
¶ 133. In the latter cases, a defendant must show that
there was a " 'reasonable probability' of a
different result had the evidence in question been
excluded." Id. ¶ 133 (quoting
Strickland v. Washington, 466 U.S. 668, 694 (1984)).
Applying this "results-oriented" analysis
(id. ¶ 134), the supreme court noted that the
alleged error at issue in White was not prejudicial
because it did not "figure prominently in the [trial]
court's finding of guilt." Id. ¶ 140;
see also id. ¶¶ 133, 135. These statements
arguably conflict with Herron's rulings that a
defendant alleging plain error "need not prove that the
error *** actually misled" the fact finder and that a
defendant may prove prejudice merely by showing "that
there was error and that the evidence was closely
balanced." Herron, 215 Ill.2d at 193. However,
we conclude that these statements in White are
dicta which are unnecessary to the court's
holding. As noted above, White held that the
defendant could not show prejudice because the evidence was
not closely balanced. Because White's holding is
consistent with the traditional plain error analysis
announced in Herron, we do not read White
as changing that analysis.
21 Moreover, although White apparently modified
another aspect of the traditional plain error analysis, this
modification does not effect our analysis or our conclusion
in this case. White acknowledged that, "as a
matter of convention, " the supreme court "has
typically undertaken plain-error review by first determining
whether error occurred at all." White, 2011 IL
109689, ¶ 144. Typically, only after the court has first
determined that an error occurred will the court proceed to
determine whether the evidence in the case was closely
balanced, rendering the error reversible. See, e.g.,
People v. Sargent, 239 Ill.2d 166, 189-90 (2010).
However, in White, the court broke with convention
and determined that the evidence was not closely balanced
without first determining whether any error had occurred.
Because the court found that the evidence was not closely
balanced, it affirmed the defendant's conviction on that
basis without determining whether the trial court had
erred.The court applied this unconventional
analysis for three reasons. First, the error alleged by the
defendant was a constitutional error, and the established
doctrine of constitutional avoidance requires courts to avoid
the adjudication of constitutional issues if the case can be
decided on other grounds. White, 2011 IL 109689,
¶¶ 144-48. Second, the record before the trial
court was inadequately developed to permit a fair review of
the defendant's claim of error because the State did not
have an opportunity to adduce all available evidence bearing
on the defendant's constitutional contentions.
Id. ¶¶ 143, 148. Third, because the
evidence was not closely balanced, any error committed by the
trial court would not have prejudiced the defendant. Thus, it
was unnecessary to determine whether any error had occurred.
Id. ¶¶ 144-48.
22 None of these considerations applies here. The error at
issue in this case is the trial court's failure to comply
with Illinois Supreme Court Rule 431(b), not any alleged
constitutional error. Moreover, the record of the trial
court's error is sufficiently developed for us to review
it. In addition, because the evidence in this case is closely
balanced, any error committed by the trial court would be
automatically prejudicial. Thus, unlike the facts presented
in White, the facts in this case require us to
determine whether an error occurred.
23 For all these reasons, we conclude that the
"conventional" plain error analysis is appropriate
in this case. Having applied that analysis, we hold that the
trial court erred by failing to comply with the requirements
of Rule 431(b). Although the error in this case was minimal,
there is no de minimis exception to the first prong
of the plain error test. People v. Belknap, 396
Ill.App.3d 183 (2009). Moreover, we find that the evidence in
this case was closely balanced. Accordingly, the trial
court's clear and obvious error prejudiced the defendant.
Therefore, we do not need to reach the second prong of the
plain error test, and we reverse and remand for a new trial.
25 For the foregoing reasons, the judgment of the circuit
court of Rock Island is reversed, and the cause is remanded
for further proceedings.
26 Reversed and remanded.
[*]Note: This syllabus constitutes
no part of the opinion of the court but has been prepared by
the Reporter of Decisions for the convenience of the
Although three of those four were asked
by the defendant's attorney if they "ha[d] a
problem" with those principles, this does not change the
fact that the trial court failed to provide each juror an
opportunity to respond to specific questions concerning the
principles set forth in Rule 431(b). See People v.
Hill, 408 Ill.App.3d 23, 28 (2011); People v.
Stewart, 406 Ill.App.3d 518, 534-35 (2010). Moreover,
the fourth juror was not asked by either the trial court or
the defense attorney if he accepted the principles.
If the supreme court intended to
overrule the traditional plain error analysis announced in
Herron, we would expect it to acknowledge that it
was doing so, particularly considering that it cited
Herron when defining the scope of the prejudice
requirement in plain error cases. White, 2011 IL
109689, ¶ 133. We should not assume that the supreme
court has overruled a well-established prior decision sub
silentio if we can avoid making that assumption.
The court was able to reach this result
because the only basis for the defendant's claim of plain
error was his claim that the evidence was closely balanced.
The defendant did not argue for plain error review under the
second prong of the plain error doctrine. White,
2011 IL 109689, ¶¶ 131, 144.