Appeal from the Circuit Court of the 14th Judicial Circuit, Henry County, Illinois. Circuit No. 12-CF-22. Honorable Ted J. Hamer Judge, Presiding.
JUSTICE LYTTON delivered the judgment of the court, with opinion. Presiding Justice McDade specially concurred, with opinion. Justice Schmidt concurred in part and dissented in part, with opinion.
[¶1] Defendant Liridon Gashi was convicted of two counts of aggravated criminal sexual abuse following a jury trial. The trial court sentenced defendant to 24 months of conditional discharge. Defendant appeals, arguing that he was denied a fair trial because the trial court (1) told jurors that they could decide what " reasonable doubt" means, and (2) failed to ask prospective jurors if they understood and accepted each of the principles set forth in Illinois Supreme Court Rule 431(b) (eff.
July 1, 2012).
We agree that the trial court committed reversible error by telling jurors that they could decide for themselves what " reasonable doubt" means. We reverse and remand.
[¶3] In January 2012, the State charged defendant, a 24-year-old, with six counts of aggravated criminal sexual abuse. 720 ILCS 5/12-16(d) (West 2010). Counts I, III and V of the information alleged that defendant inserted his finger into the vagina of M.G.S., a 16-year-old, between November 2011 and December 2011. Counts II, IV, and VI alleged that defendant fondled M.G.S.'s breasts during the same time period. Defendant pled not guilty. The case proceeded to a jury trial.
[¶4] During voir dire, the trial judge stated that defendant was presumed innocent, and then asked the potential jurors, " Is there anybody that disagrees with that?" After noting that no one raised a hand, the judge continued: " Before Mr. Gashi can be convicted -- in other words, found guilty -- the State of Illinois through [the prosecutor], must prove him guilty beyond a reasonable doubt. Is there anybody that has any difficulty with that?" When no one raised a hand, the judge continued:
" Beyond a reasonable doubt is the highest standard of proof. It's the same burden in every courtroom throughout the United States. And I'll also tell you this: At the end of the case, you're going to get jury instructions on the law, but you will not get a definition of beyond a reasonable doubt. That is for you to determine.
Mr. Gashi is not required to offer any evidence on his behalf. In other words, he does not have to testify. He does not have to have [his attorney] ask questions. He does not have to call any witnesses on his behalf. Is there anybody that has difficulty with that?
Let the record reflect that no one raised their hand.
Mr. Gashi also does not have to testify in this case, and you are not to hold that against him in arriving at your verdict if he does not testify. In other words, you can't say, well, he didn't testify, he must be guilty because he didn't testify. That's not the way it works. You are not to hold that against him in any way. Is there anybody that has any difficulty with that?
Let the record reflect that no one raised their hand."
[¶5] After the jury was selected but before the trial began, the trial judge stated: " As I said earlier today, you will decide what reasonable doubt is. There's not going to be a jury instruction that explains it to you. It is what it is, beyond a reasonable doubt."
[¶6] Defendant's trial then began with the testimony of M.G.S., who testified that she worked with defendant at Parkway Grill in 2011, when she was 16 years old. He was a cook, and she was a waitress. She and defendant began texting each other in September " and started a physical relationship [in] late October, early November" of 2011. In one of her texts, she told defendant that she was 16 years old. She and defendant talked once about their relationship being illegal because of her age. M.G.S. could not recall the specifics of that conversation.
[¶7] M.G.S. and defendant kissed approximately five or six times in the back hallway and just outside the back door of Parkway Grill from late October to early November. In mid-November 2011, defendant began touching her breasts and vagina under her clothing. She estimated that defendant touched her breasts and
vagina approximately 5 to 15 times between mid-November to mid-December 2011. He inserted his finger in her vagina five to eight times during that time period. These activities took place at Parkway Grill and defendant's apartment.
[¶8] In December 2011, Jan Stohl, the mother of one of M.G.S.'s friends, found out what defendant was doing and confronted M.G.S., defendant and the owner of Parkway Grill. After that, M.G.S. told her mother what defendant had been doing. Her mother took her to the police station to file a police report. The last time defendant touched M.G.S. was approximately a week before she went to the police station.
[¶9] M.G.S. testified that her relationship with defendant was secret by " [d]esign." She and defendant never went out in public together. In Illinois, people tell M.G.S. that they think she looks older than she is. In Missouri, where M.G.S. now lives, people tell her that she looks younger than she is.
[¶10] Jan Stohl testified that she has known M.G.S. since she was " about six months old." Stohl's daughter and M.G.S. were friends. In mid-December 2011, Stohl learned that M.G.S. was having an improper relationship with defendant, so she went to Parkway Grill and spoke to the owner of the restaurant, defendant and M.G.S. Stohl asked defendant if he knew his relationship with M.G.S. was illegal. Defendant responded, " yes," and said he understood. When Stohl asked defendant if he knew he could go to jail for what he did to M.G.S, defendant answered, " yes," he did know that but said " I'm not going to jail." According to Stohl, defendant also apologized and said he " knew that it was wrong."
[¶11] Stohl testified that her conversation at Parkway Grill lasted approximately 15 to 20 minutes. During that time, she repeatedly stated that defendant's actions were wrong and illegal. She also repeatedly asked defendant if he knew that his actions were wrong and illegal. Every time she asked defendant that question, he said that he knew it was illegal and that he was sorry. She admitted that she was talking quickly at the beginning of the conversation but slowed down as she became calmer. Defendant seemed to understand what she was saying during the entire conversation.
[¶12] Steve Whittington, a police officer for the City of Geneseo, testified that he and another officer, Tim Wise, interviewed defendant at the police station on January 18, 2012. A DVD of that interview was played for the jury. In that interview, defendant stated he is from Kosovo and has lived in the United States for three years. He learned English while living in Kosovo. Defendant said that he had known M.G.S. for five to seven months. He admitted kissing her a few times in his car and his apartment. He also admitted that he touched her breasts and inserted his finger in her vagina one time at his apartment. When Officer Whittington asked defendant if he knew how old M.G.S. was, he said, " After we did that, then I ...