People v. Sebby, 2017 IL 119445 (June). Episode 351 (Duration 9:25)

Supreme Court explains how plain error analysis works.

Facts

Deputies gets all scratched up on his arm and hand when deputies attempted to arrest defendant.

They were at his mother’s house serving a custody order to his sister involving the child of another sister of theirs.

Deputy said Defendant poked the deputy when he was telling him to get off his property, that prompted the arrest and the struggle. Defendant’s family members and defendant himself testified that he did not resist and that the officers were belligerent and hostile from the get go.

Trial Judge Error

During the trial for aggravated resisting arrest the trial court screwed up the Zehr principles.

The court individually asked members of the panel whether any of them “[h]ad any problems” with those principles, while interweaving questions about whether there was anything that would prevent them from being fair and impartial in evaluating the evidence.

The trial court specifically repeated its question with respect to the presumption of innocence to two potential jurors because they indicated that they might be biased.

Using similar phrasing, the trial court spoke to each panel of prospective jurors about the Zehr principles. The trial court again asked the individual jurors of each panel whether they “[had any problems” with or “believed] in” those principles, as well as whether anything would prevent them from being fair and impartial.

Everyone agrees this was error.

Rule 431(b) – Zehr Rule

Under Rule 431(b), the trial court should have asked whether jurors understood and accepted those principles.

Zehr, Rule 431(b) was designed to ensure that the defendant has a fair and impartial jury—a jury that understands and accepts four important constitutional 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 if a defendant does not testify it cannot be held against him or her.”

Ill. S. Ct. R. 431(b) (eff. July 1, 2012).

Plain Error

Because the defendant did not object, the issue became whether his forfeiture could be excused under the plain error doctrine.

Plain error requires reversal when

(1) when “a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error,” or
(2) when “a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant’s trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence.”

A Rule 431(b) violation is not cognizable under the second prong of the plain error doctrine, absent evidence that the violation produced a biased jury.

Resisting Arrest

The relevant evidence at the defendant’s trial involved two elements:

(1) whether the defendant knowingly resisted the deputies’ actions in arresting him for battery to a police officer and, if so,
(2) whether that conduct proximately caused the injury.

Closeness Of The Evidence

Which means the defendant must establish that the evidence in this Illinois trial was closely balanced.

In determining whether the evidence adduced at trial was close, a reviewing court must evaluate the totality of the evidence and conduct a qualitative, commonsense assessment of it within the context of the case.

The Illinois Supreme court said that standard seems quite simple, but the opposite is true. A reviewing court’s inquiry involves an assessment of the evidence on the elements of the charged offense or offenses, along with any evidence regarding the witnesses’ credibility.

The defendant argues that the evidence was closely balanced because both parties presented plausible versions of events.

The State responds that it presented ample, persuasive evidence of the defendant’s guilt.

Issue

The issue before the high court, however, does not involve the sufficiency of close evidence but rather the closeness of sufficient evidence. In other words, whether the evidence is closely balanced is, of course, a separate question from whether the evidence is sufficient to sustain a conviction on review against a reasonable doubt challenge.

Analysis

A commonsense assessment of the evidence reveals that it was closely balanced. The deputies’ testimony was largely consistent, but so was the testimony of the defendant and his witnesses.

Minor inconsistencies clouded the testimony on both sides, but neither the prosecution nor the defense accounts of that morning’s events were fanciful.

The high court concluded that because both versions were credible, the evidence was closely balanced.

Prejudice?

The State is correct in its contention that a defendant must show prejudice to obtain relief under the first prong of the plain error doctrine. As our cases clearly indicate, though, prejudice rests not upon the seriousness of the error but upon the closeness of the evidence.

What makes an error prejudicial is the fact that it occurred in a close case where its impact on the result was potentially dispositive.

The trial court’s questions about those principles, particularly the defendant’s presumption of innocence and the State’s burden of proof, constitute preliminary instructions to potential jurors on how they must evaluate the evidence, so a Rule 431(b) violation may affect the verdict.

If jurors do not understand and accept that the defendant is presumed innocent, then credibility contests could lean in the State’s favor, which could tip the scales of justice against the defendant in a close case. Or if jurors do not understand and accept that the State bears the burden of proof beyond a reasonable doubt, then, again, credibility contests could lean in the State’s favor, which also could tip the scales of justice against the defendant in a close case.

Holding

A jury that does not understand and accept those principles may weigh the evidence in favor of the State or render a guilty verdict on insufficient proof, again tipping the scales against the defendant in a close case.

Thus, the only question in a first-prong case, once clear error has been established, is whether the evidence is closely balanced.

The court rejected the State’s argument that we should abandon our definition of prejudicial error found in the case law. Plain errors by definition are substantial. See Ill. S. Ct. R. 615(a).