People v. Dismuke, 2017 IL App (2d) 141203 (June). Episode 361 (Duration 8:30)
Zehr principles are royal screwed up leading to a reversal under plain error.
Defendant was convicted of being an armed habitual criminal after an informant said he was responsible for a shooting of car that happened a year earlier.
Defendant’s neighbor found the gun wrapped in a garbage bag under his stairs.
Forensic analysis proved that this gun was used in the shooting of the Isuzu, and the informant told police defendant said he needed to get rid of the gun.
The state’s theory was that defendant had the gun from the time the informant gave it to him to the time that his neighbor found it.
A fingerprint expert testified that a print on the garbage bag was a partial left thumb print that matched defendant’s.
The informant testified he was in defendant’s kitchen when another guy gave defendant the gun with instructions to get rid of it.
Police did not find the gun after executing a search warrant in defendant’s home.
At the beginning of voir dire, the court admonished the venire as to “certain principles of law that apply to all criminal cases.”
(1) the presumption of innocence;
(2) the State has the burden of proof;
(3) the defendant is not required to offer evidence on his own behalf; and
(4) the defendant’s failure to testify cannot be used against him.
See Ill. S. Ct. R. 431(b) (codifying People v. Zehr, 103 Ill. 2d 472 (1984)). We refer to these principles as the “Zehr principles.”
Understand & Accept
**The rule provides that the court “shall ask” each juror, either individually or in a group, whether he or she “understands and accepts” the Zehr principles.
In People v. Thompson, 238 Ill. 2d 598, 607 (2010), our supreme court made clear that the court must ask both whether the jurors understand and accept the principles. Rule 431(b) mandates “a specific question and response process.” The court “shall ask” whether the potential jurors understand and accept the enumerated principles.
Asking jurors they had any “difficulty or disagreement” was not equivalent to asking if they understood.
For example, someone might not disagree with a statement simply because he or she does not understand it.
The court instructed the entire venire to raise hands if the potential jurors did not “understand or accept these principles or don’t agree with them.”
Just prior to that instruction, the court had instructed the venirepersons not to raise their hands if they did understand, agree with, and accept the principles.
The court then recited each principle followed by a different question:
“Is there anyone who has any difficulty or disagreement with this proposition of law?”
The court instructed the venirepersons to raise their hands if they did. No hands were raised.
Defense counsel did not object to the court’s handling of the Zehr principles.
After the alternate jurors were chosen the court then for the first time told the alternates that it would explain the Zehr principles.
The court further explained that not raising their hands signified that they understood and accepted those principles.
The court stated that, if they raised their hands, it would signify that they did not accept or understand the principles or did not agree with them.
The court recited the Zehr principles and inquired after each recitation whether either of the alternate jurors had “any difficulty or disagreement” with the stated principle.
Neither raised a hand.
The court then had the entire jury, including the two alternates, sworn. On the second day of trial, one of the alternate jurors replaced a juror who was excused for illness.
The inclusion of the court’s entire colloquy with the venire by Justice Burke in his special concurrence demonstrates how unclear and inadequate the court’s instructions were.
In this trial procedure the court
First, instructed the potential jurors not to raise their hands if they understood, agreed with, and accepted the Zehr principles.
Second, the court instructed the potential jurors to raise their hands in response to its question if they did not understand or accept the principles.
Third, after reciting each principle, the court changed the question from “understand and accept” to “difficulty or disagreement.”
So, potential jurors received three different instructions about what they were supposed to do with their hands. More problematic was the court’s substitution of “difficulty or disagreement” for “understand and accept.”
In sum, by using this confusing multi-task exercise, the court’s method of inquiry failed to determine whether the potential jurors understood the principles.
Rather than make the procedure so convoluted, it was necessary only to recite the principles and ask the potential jurors one question:
whether they understood and accepted the principles.
Accordingly, the court held that the court violated Rule 431(b).
Incidentally, the case law doesn’t require any specific time for when this questioning should be done.
It can be done after the jurors are chosen.
The next question is whether the error requires reversal and remand for a new trial pursuant to plain-error review.
It is undisputed that defendant did not preserve the error by objecting to the procedure at voir dire or in his post trial motion.
The plain-error doctrine allows a reviewing court to consider unpreserved error when a clear or obvious error occurred and (1) 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) the error was so serious that it affected the fairness of the defendant’s trial and challenged the integrity of the judicial process.
In Thompson, our supreme court held that a violation of Rule 431(b) is not cognizable under the second prong of the plain-error doctrine. Thompson, 238 Ill. 2d at 611.
Consequently, defendant argues that the evidence in the present case is so closely balanced that reversal of his conviction is required. Whether the evidence is closely balanced is a separate question from whether the evidence is sufficient to sustain a conviction against a reasonable-doubt challenge.
In determining whether the evidence is closely balanced, the evidence is viewed in a commonsense manner in the context of the totality of the circumstances. The court held that under the totality of the circumstances, the evidence is closely balanced.
Accordingly, the court’s failure to comply with Rule 431(b) requires reversal and a new trial.