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People v. Vesey

Court of Appeals of Illinois, Third District

September 27, 2011

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
JANET VESEY, Defendant-Appellant.

         Posted date September 20, 2016

         Appeal from the Circuit Court of Rock Island County, No. 08-CF-1265; the Hon. Thomas C. Berglund, Judge, presiding.

          Robert Agostinelli, of State Appellate Defender's Office, of Ottawa, and Ron D. Dolak, of Konicek & Dillon, P.C., of Geneva, for appellant.

          Jeff 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 People.

          Panel JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion. Presiding Justice Carter and Justice O'Brien concurred in the judgment and opinion.

         Held [*]

         Defendant's 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.

          OPINION

          HOLDRIDGE, JUSTICE

         ¶ 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.

         ¶ 2 FACTS

         ¶ 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 straw.

         ¶ 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 ...

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