Where defendant’s convictions for first degree murder and a related offense were reversed and the cause was remanded for a new trial due to the trial court’s violation of Supreme Court Rule 431(b) and defendant was found guilty of first degree murder a second time, the second conviction was also reversed and remanded for a new trial due to a violation of Rule 431(b), notwithstanding the fact that the trial judge at the second trial covered all of the Zehr principles with each panel of prospective jurors and that, prior to Wilmington, no error would have been found; Wilmington, however, mandates a specific question as to whether the prospective jurors understood the principles, and the failure of the judge in the second trial to ask that question was an error for purposes of the plain-error doctrine.
Appeal from the Circuit Court of McDonough County, No. 07-CF-251; the Hon. Gregory K. McClintock, Judge, presiding.
Andrew J. Boyd (argued), of State Appellate Defender’s Office, of Ottawa, for appellant.
Gary F. Gnidovec (argued), of State’s Attorneys Appellate Prosecutor’s Office, of Ottawa, and Edwin A. Parkinson, of State’s Attorneys Appellate Prosecutor’s Office, of Springfield, for the People.
Justice Lytton concurred in the judgment and opinion.
¶1 After his convictions for first degree murder and a related offense were reversed by this court and remanded for a new trial, defendant, Daniel Belknap, was found guilty again by a jury of first degree murder and was sentenced to 24 years' imprisonment. Defendant appeals his conviction, arguing that: (1) the evidence was insufficient to prove him guilty beyond a reasonable doubt of first degree murder; (2) he was denied a fair trial because of the trial court's failure to strictly comply with Illinois Supreme Court Rule 431(b) (eff. May 1, 2007) in admonishing the potential jurors during voir dire; and (3) he was denied a fair trial because of certain improper remarks made by the prosecutor in opening statement and in closing argument. For the reasons that follow, we agree with defendant's second argument and, therefore, we reverse defendant's conviction and remand this case for a new trial.
¶3 On Sunday, September 10, 2006, at about 1 p.m., five-year-old Silven Yocum was found seizing in her bed at defendant's home, where she and her mother, Erin Yocum, were staying. Silven was rushed to McDonough District Hospital (MDH) in Macomb and then airlifted to St. Francis Hospital (St. Francis) in Peoria. She never regained consciousness and died a week later at St. Francis. An autopsy revealed that Silven had been murdered and that she had died from blunt force trauma to the head. Based upon the time frame established, the only person who could have committed the crime was defendant or Silven's mother.
¶4 In December 2007, more than 15 months after the crime was committed, defendant was charged with Silven's murder. He was later found guilty by a jury in McDonough County of first degree murder and endangering the life of a child in connection with Silven's death and was sentenced to concurrent terms of imprisonment of 30 years and 10 years. We reversed defendant's convictions on appeal, finding that the evidence in the case was closely balanced and that as a matter of first-prong plain error, defendant was denied a fair trial when the trial court failed to comply with Supreme Court Rule 431(b) in admonishing potential jurors. People v. Belknap, 396 Ill.App.3d 183, 204-07 (2009) (Belknap I). Because we concluded that the evidence presented at the trial was sufficient to prove defendant guilty beyond a reasonable doubt, we remanded the case for a new trial, rather than reversing defendant's conviction outright. Id.
¶5 On remand, because of pretrial publicity, the case was transferred to Warren County on motion of defendant. The second jury trial began in August 2011 and lasted about a week. During the beginning of the jury selection process, the trial court informed the entire pool of prospective jurors as to the four principles contained in Rule 431(b)–that defendant was presumed innocent of the charge against him; that the State had to prove defendant guilty beyond a reasonable doubt; that defendant was not required to offer any evidence on his own behalf; and that if defendant chose not to testify, the jury could not hold that against him (see Ill. S.Ct. R. 431(b) (eff. May 1, 2007)). The voir dire was conducted in panels of six prospective jurors and the trial court went through six of those panels before the entire jury and the alternate jurors were selected. With each panel, the trial court admonished the potential jurors as a group as to all four of the Rule 431(b) principles and asked the panel members as a group whether they all agreed with, accepted (or had any difficulty accepting), or had any quarrel with, those principles, varying the language that it used from time to time. At no time, however, did the trial court inquire of any of the panels whether the panel members understood the Rule 431(b) principles. After the jury had been selected and sworn and just prior to opening statements, the trial court provided the jury with some basic instructions. As part of those instructions, the trial court again informed the jury of the four Rule 431(b) principles.
¶6 During its opening statement, the State made certain remarks which defendant claims on appeal constituted an improper attempt by the prosecution to elicit the jury's sympathy for the victim. Those remarks were not objected to by the defense.
¶7 After opening statements had concluded, the State called Larry Leasman as its first witness. Leasman testified that during the early morning hours of Saturday, September 9, 2006, at about 2 a.m., he stopped by defendant's house in rural McDonough County outside of Macomb on his way home from work after he saw defendant's light on. Defendant was working in the garage. Leasman stayed about an hour and smoked methamphetamine (meth) with defendant. After Leasman was there a short period of time, Erin Yocum came into the garage. Erin said that she had been at the Wal-Mart store in Macomb. Leasman did not remember whether Erin had smoked any meth with them and did not see Silven Yocum (Erin's daughter) at all while he was there.
¶8 Erin Yocum testified for the State that she was Silven's mother and that she was 36 years old at the time of trial. In February 2006, Erin started dating defendant while she and Silven lived in Macomb. Later that summer, Erin and Silven spent almost every night at defendant's house. During that time period, both Erin and defendant were using meth. When summer was ending and school had started, during what turned out to be the last week of Silven's life, Erin and Silven moved into defendant's house on a more permanent basis and Erin moved Silven's bed and toys to defendant's house. At the time of Silven's death in September 2006, Silven was five years old and was attending kindergarten at a local school.
¶9 On Friday, September 8, 2006, Erin and Silven were spending the night at defendant's house. At about midnight, Erin left defendant's house to go to the Wal-Mart and HyVee stores in Macomb to get some magazines. Silven stayed at defendant's house with defendant and was asleep in her bedroom. When Erin returned, defendant was in the garage with Larry Leasman. Defendant and Leasman were smoking meth. Erin did not know Leasman and did not smoke meth with defendant and Leasman in the garage that night. After a short while, Erin went to bed and defendant stayed out in the garage.
¶10 Erin woke up at about 6 a.m. Defendant was still out in the garage and Silven was asleep in her bed. Erin went out to the garage and Silven followed her out there a short while later. At some point before 11 a.m., Erin and Silven painted a dog house that was behind the garage. While Erin was painting, Silven sat on Erin's lap and was very clingy that entire day. Erin believed that Silven was getting sick. Defendant asked Silven to come into the house with him and to help him make breakfast. Silven cried and did not want to go with defendant. Defendant took Silven into the house and he and Silven made breakfast, which they all ate. When Erin went into the house after defendant and Silven had made breakfast together, she did not notice anything wrong with Silven, other than Silven was feeling sluggish and tired. Silven was not complaining about any head injuries or holding her head in the back area, and she was not bleeding.
¶11 After breakfast, defendant took Silven for a ride on his four wheeler. Later in the day, Silven was not happy and had no one to play with so Erin went to her brother Erik's house to pick up Erik's son, Brett, so that Silven would have someone with whom to play. Brett was a year older than Silven. Silven did not go with Erin to pick up Brett. Rather, because Silven was still not feeling well, Erin had Silven lie down in bed and watch a movie. When Erin returned with Brett about 45 minutes later, Silven was still lying in her bed but was not asleep. Nothing appeared to be wrong with Silven at that time, other than it seemed that Silven was not feeling well. Silven was conscious, was not bleeding, and was not complaining of any head injuries, and Erin did not notice anything unusual. Brett tried to get Silven to play on the trampoline at defendant's house with him, but Silven did not feel like playing. Brett jumped on the trampoline, and Silven sat in a chair that defendant brought to the backyard for her and watched Brett jump.
¶12 At some point between 6 p.m. and 7 p.m., Erin's brother, Erik, who was Brett's father, came to defendant's house to pick up Brett and to take Brett to a birthday party at a pizza place in Macomb. Silven went with Erik to drop off Brett. A short while later, after he had dropped off Brett, Erik returned with Silven. Erik commented that Silven did not seem to have an appetite that night, which was unusual for Silven. Silven was holding onto Erik. Defendant took Silven and put her to bed, and Erik left.
¶13 Shortly thereafter, at about 7:30 p.m., Erik called and told Erin that the tire had fallen off of his truck while he was on the way to pick up Brett from the party. Erin left to pick up Erik. At that point, Silven was still awake. Defendant said that he would take Silven, and Erin handed Silven to defendant. When Erin returned with Erik about 20 minutes later, Silven was in bed. Erin never saw Silven awake again after that point. Defendant and Erik went to fix Erik's truck and were able to get it back to defendant's residence. Erik used Erin's car to pick up Brett and took Erin's car with him back to his house for the night. As some point later that night, defendant left the house and went and got medicine and food for Erin and Silven.
¶14 The next morning, Sunday, September 9, 2006, Erin woke up at about 6:30 a.m. and again at about 10 or 10:30 a.m. to go to the bathroom and to get a glass of water. At both times, defendant was still in bed sleeping and there was no indication that he had been awake. When Erin walked by Silven's bedroom during those times, she heard what she believed was Silven snoring unusually loud. Erin was not wearing her glasses at the time and did not go into Silven's bedroom to check on her. Erin peeked into the room, heard Silven breathing loud, thought that Silven was getting sick, and decided to let Silven sleep.
¶15 During the noon hour, Erik called and asked them if they wanted anything to eat from McDonald's. Silven was still asleep in her bed at the time. Erin went to see what Silven wanted to eat and discovered that Silven was seizing. Erin acknowledged while testifying, however, that she could not remember for sure and that defendant may have been the person who actually discovered that Silven was seizing. Silven did not have epilepsy or any condition like that, and Erin had never seen Silven seize before. The noise that Silven was making was the snoring-like noise that Erin had heard earlier. Erin tried to wake Silven up, but Silven did not wake up or respond. Defendant was in and out of the room during that time, but Erin was not paying attention to him.
¶16 Erin called 9-1-1 and an ambulance crew arrived at defendant's house shortly thereafter. Erin acknowledged during her testimony, however, that she may have called her mother before she called 9-1-1. The ambulance took Silven to McDonough District Hospital (MDH) in Macomb. Erin and defendant followed. When Erin and defendant got to MDH, Silven was not awake. While at MDH, Silven's primary care doctor, Dr. Khaled Dabash, told Erin some shocking things about Silven's injuries, most of which were later determined not to be true. The doctor told Erin that Silven was broken from head to toe, that Silven had a broken sternum and punctured bowels, that Silven had been tied at the ankles, and that she had been sodomized.
¶17 Silven was later airlifted to St. Francis hospital in Peoria for more intensive care. Defendant and Erin started on their way to the hospital in Peoria in defendant's truck but on the way, defendant decided not go. Defendant pulled over and let Erin out and she was picked up by her parents, who were also on their way to St. Francis. Defendant did not say why he did not want to go to St. Francis. Although Erin could not quite remember, she guessed that she had told defendant what Dr. Dabash had said while they were on the way to St. Francis. After they arrived at St. Francis, hospital personnel told Erin's family that defendant was not allowed to be there, and Erin's parents took her cell phone away. Although Erin could not remember exactly, she speculated that defendant wanted to come to the hospital, but that her parents and the police did not want defendant there. Despite treatment procedures being administered for brain trauma and to relieve the pressure in Silven's head, Silven remained in a coma and never regained consciousness. Silven passed away at St. Francis on the following Saturday, September 16, 2006.
¶18 Erin started using meth when she was dating John Shriver, Silven's father, who was not actively involved in Silven's life. From 2001 through February 2006, Erin dated Andy Yates and continued to use meth throughout that period. Yates was like a father to Silven and had a very close relationship with her. When Erin started dating defendant, Silven had a very difficult time adjusting to being away from Yates and being with defendant. As the start of the school year was approaching, Erin was so concerned about the problem that she talked to school personnel about it and also noted on a teacher questionnaire that Silven was struggling with that issue. After Erin started dating defendant, she tried to let Silven maintain a relationship with Yates and Yates's mother but eventually had to terminate that relationship because Yates was questioning Silven about who Erin was dating and Erin did not want Silven to see her and Yates arguing.
¶19 Erin was interviewed by the police on several occasions after Silven's injury and death. Erin told the police that defendant was new to Silven and that Silven was having difficulty adjusting but that the two got along well. It became apparent to Erin very early on after Silven was injured that the police were focusing on defendant. During her police interviews, the detectives made significant attempts to try to make Erin tell them that defendant was the person who had injured Silven. The detectives pleaded with Erin and told her to do it for Silven and herself. At one point, the detectives had Erin come in on Valentine's Day and showed her a tape of defendant's old girlfriend visiting defendant in jail in an attempt to get Erin to tell them that defendant had caused Silven's injuries. In spite of all that, Erin never told the police that defendant killed Silven. During her testimony, portions of Erin's statement to police were played for the jury.
¶20 Erin testified further that she did not strike Silven with her hand or an object, did not kick Silven, and did not do anything to Silven that would have caused Silven's head injuries. Erin also stated that she did not witness anything happen to Silven and did not know what had caused Silven's injuries. Erin had given Silven a bath within a couple of days prior to Sunday, September 10, 2006, and did not notice any bruises or scrapes on Silven's body, other than something on the inside of Silven's ankle and a blister on her heel from her new shoes. Erin never heard anything in the middle of the night on Saturday night or Sunday morning–she did not hear Silven crying or screaming or any commotion. Erin was never charged with causing Silven's death. She was, however, charged with, and pled guilty to, misdemeanor child endangerment for having Silven in a place where meth was being used. At some point, Erin was also arrested and charged with a federal crime for her use of meth. On that charge, Erin was allowed to participate in a pretrial diversion program in which she had to complete drug treatment.
¶21 Erin continued to be defendant's girlfriend for several months after Silven's death. According to Erin, defendant was very good to Silven and tried very hard to please Silven so that she would warm up to him. Defendant was kind to Silven, took her places, and appeared to love Silven. During the last week of Silven's life, Erin started to get sick and was very sick by that Saturday. Erin became so sick that while Silven was in the hospital, Erin had to go to the emergency room to be treated for a sinus infection. During the entire day of Saturday, September 9, 2006, defendant tried to help out with Silven. Defendant made breakfast with Silven, called some people to try to find someone for Silven to play with, took Silven for a four-wheeler ride, got Silven a chair so that she could watch Brett play on the trampoline, and tried to find things to help Silven occupy her time. Defendant was not mad or angry with Silven, never screamed at Silven, and never spanked her. After defendant was charged in federal court with crimes relating to meth, Erin made numerous trips in the spring and summer of 2007 to the Tazewell County jail, where defendant was being held on those charges, to visit defendant. All of those visits were recorded. Defendant had not been charged with Silven's murder at that point. While defendant was in jail, Erin had hundreds of telephone conversations with defendant, wrote hundreds of letters to defendant, and sent pictures and cards to defendant. In a recorded phone conversation, Erin stated that she felt that the police were unfairly targeting defendant in the death of Silven. Erin had grown very frustrated with the sheriff's office and felt that she was being pressured very hard by the sheriff to say that defendant committed the crime or to say that she knew something that she did not know.
¶22 Erin stated that she maintained her relationship with defendant for several months after Silven's death because she loved defendant and because she could not believe that defendant had done anything to Silven since she had never seen any signs that defendant would do anything bad to Silven. During those same months, Erin cooperated with the police as best she could. In a phone conversation that Erin had with defendant in January 2007 when defendant was in jail in which Erin was telling defendant that the sheriff wanted her to come back in for another interview and that she did not want to go, defendant told Erin not to go talk to the sheriff. Erin acknowledged in her testimony that Silven had been uprooted from her home in Macomb to go out and live in a house with defendant and that Silven did not like it. Erin could sense at times that Silven was not fond of defendant. According to Erin, she was in denial all those months when she wrote hundreds of letters and made numerous phone calls to defendant while he was in jail on the drug charges. Defendant was not charged with Silven's murder until a year later.
¶23 Erik Yocum, Erin's brother, provided testimony that was similar to Erin's as to the events of September 9 and 10, 2006, regarding his son, Brett, going to defendant's house on September 9 to play with Silven; Silven riding with him to drop Brett off at a birthday party; Silven being very clingy; his truck breaking down later in the evening; him and defendant going back to fix his truck; and his calling and returning to the residence on Sunday, September 10. In further detail, Erik stated that when he was leaving from defendant's residence to pick up Brett from the party and to go back to his own house Saturday night, Silven did not want to stay at defendant's residence and was begging and crying to go home with him. Erik handed Silven to defendant and left the residence to pick up Brett. When Erik got to the defendant's residence on Sunday, defendant was out on the porch brushing his teeth and motioned Erik to go into the house. Erin was kneeling next to Silven's bed. Shortly thereafter the paramedics arrived. According to Erik, at that time, Erin appeared upset. Defendant showed concern but did not appear to be upset. Although he did not remember initially, after being shown a transcript of his testimony before the grand jury, Erik acknowledged that he testified at that time that he had only seen defendant and Silven together once or twice, but what he had seen was fairly good and that defendant treated Silven like his own child.
¶24 Aaron Wilson testified for the State that he was a paramedic through MDH and, as of the trial date, had been a paramedic for over 15 years. Wilson was the first paramedic to arrive at defendant's residence on Sunday, September 10, 2006, in response to the 9-1-1 call. When Wilson arrived on the scene, there were several toys scattered throughout the driveway and defendant was outside removing the toys from the porch. Wilson went into the house with his medical bag to address the emergency, which he had been told was a five-year-old having a seizure. Wilson entered through the kitchen area and went with Erin to the back bedroom where Silven was located. Upon entering the bedroom, Wilson saw that Silven was lying on the bed and was having convulsions and seizures. It did not appear to Wilson to be a standard seizure. Silven's upper extremities were shaking uncontrollably and she would not respond to any stimuli. Silven's eyes were open and fixed to the right, there was nystagmus (uncontrolled shaking of the eyeballs) present, and she had dried blood around her nose and mouth. Wilson began asking Erin, who was crying and very upset, the standard treatment questions. There were six people in Silven's bedroom while Wilson was attending to Silven, including Erin, Wilson, and members of the rescue squad. Wilson eventually scooped Silven up and handed her to members of the rescue squad and told them to take Silven out to the ambulance. Upon arrival at MDH, Wilson turned Silven over to paramedic Heather Connor and to the doctors and nurses at MDH.
¶25 According to Wilson, the entire time he was at defendant's residence, defendant never went into Silven's bedroom. Wilson acknowledged, however, that he had no idea whether defendant was in Silven's room before he arrived and that defendant may have stepped into the bedroom while Wilson had his back turned and was attending to Silven. At one point while Wilson was kneeling down attending to Silven, he saw that defendant was pacing back and forth in the kitchen and was saying, "oh, sh***; oh, d***; and God d***." In addition, Wilson stated that at the hospital, there was a time when everyone was looking for defendant. Wilson went outside and found defendant standing in the parking lot by his truck.
¶26 Heather Connor testified that she was a paramedic at MDH at the time of Silven's injury and, as of the date of trial, had been a paramedic for 10 years. Connor assisted Wilson when he brought Silven into the hospital that day. Connor met Wilson in the hospital garage with a stretcher and placed Silven in a trauma bay. Connor stayed with Silven the entire time at MDH until she was placed on the helicopter to be airlifted to St. Francis. The only time Connor left Silven was when she went to call for the helicopter. When Silven arrived, she was limp, had no spontaneous movement in any of her extremities, and did not respond to stimuli. Erin, Erin's mother, and defendant were brought into the trauma bay to be with Silven. When Erin learned from the doctor that it was an injury and that Silven's brain was bleeding, Erin was very distraught and upset and was in a state of shock. Erin stayed by Silven's bedside the entire time and rubbed Silven's hand and stroked her head. Defendant was also in the room but, according to Connor, defendant kept his back to the stretcher and never went over and tried to touch Silven. Conner acknowledged, however, that every person grieved differently and that there was not much that could be read into defendant's demeanor in that regard. Connor told Erin, Erin's mother, and defendant that the helicopter would arrive in 25 minutes and that it would take 20 minutes for the helicopter to get to St. Francis once Silven was aboard. Erin waited for the helicopter, and defendant left to pack a bag for Erin and to get Erin her medicine.
¶27 Dr. Khaled Dabash's testimony from defendant's first trial was read to the jury, but was not recorded. Dabash testified during that trial that he was Silven's pediatrician and that he was present in the emergency room on September 10, 2006, when Silven was brought in by ambulance. Upon arrival, Silven was unconscious and was still seizing but did not have a fever or any signs of infection. Silven's body was in contracture, which indicated a central nervous system insult. Dabash observed bruising and marks on Silven's body, which he believed were indicative of abuse, so he ordered a CT scan of her head. The CT scan showed that blood was covering the entire right side of Silven's brain. Dabash also suspected that Silven had a sternal fracture. Dabash ordered a life flight to take Silven to St. Francis in Peoria. Dabash opined that Silven's head injury was caused by blunt force trauma, which had occurred within 24 hours at the least before she was brought into the hospital. Dabash explained that when a child received blunt force trauma to the head, the brain would swell over time until the compression of blood on the brain caused seizures. Dabash felt that Silven's injuries were recent because the swelling in her brain had not yet reached the point of herniation. Herniation was beginning to occur at the hospital, and Dabash gave Silven a drug to reduce the swelling of her brain.
¶28 Dr. Julian Lin's testimony from defendant's first trial was read to the jury but not recorded. Lin testified at that trial that at the time of Silven's injury, he was a pediatric neurosurgeon at St. Francis Children's Hospital in Peoria, Illinois. On September 10, 2006, after 5 p.m., Lin examined Silven at St. Francis. Silven was in a coma, and Lin performed surgery to remove a very large blood clot on the surface of the right hemisphere of Silven's brain. Although Lin was able to successfully remove the clot, Silven remained in a coma. A CAT scan revealed that her brain had swelled and that the efforts to control the swelling were unsuccessful. Over the next week, Silven did not improve. She eventually had no brain activity and passed away on September 16, 2006.
¶29 Dr. Bryan Mitchell's testimony from defendant's first trial was read to the jury but not recorded. Mitchell testified during that trial that he was a forensic pathologist and that he conducted an autopsy on Silven on September 18, 2006. During the autopsy, Mitchell observed bruises on the right side of Silven's head, abrasions on the back of her head, a bruise on her right shoulder, and bruises and abrasions on her right foot. An internal investigation revealed that underneath the abrasions on Silven's head, there was a bruise inside Silven's scalp that extended to her occipital bone. Mitchell also observed that blood had collected under a membrane on the right side of Silven's brain and that the brain was very swollen. Mitchell opined that the injuries were the result of blunt force trauma and would not likely be caused by falling off a trampoline or by falling down once. According to Mitchell, there were five distinct areas of blunt force trauma to Silven's head. The blows could have been delivered by a human hand, or possibly by a foot. Some of the symptoms of brain injury were lethargy, loss of appetite, and loss of interest in activities. Mitchell explained that a brain injury, such as the one experienced by Silven, would not necessarily result in the immediate display of symptoms, such as ...