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      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. AHMED A. YUSUF, Defendant-Appellant."
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        "text": "JUSTICE McCULLOUGH\ndelivered the judgment of the court, with opinion.\nPresiding Justice Knecht and Justice Turner concurred in the judgment and opinion.\nOPINION\nIn October 2007, a jury convicted defendant, Ahmed A. Yusuf, of armed robbery (720 ILCS 5/18\u20142(a)(2) (West 2006)). In December 2007, the trial court sentenced him to seven years\u2019 imprisonment. Defendant appealed, arguing the court erred in failing to question the jurors during voir dire in compliance with Illinois Supreme Court Rule 431(b) (eff. May 1, 2007) regarding the jurors\u2019 understanding of the four basic constitutional guarantees afforded criminal defendants at trial. In November 2008, this court affirmed. People v. Yusuf, No. 4\u201408\u20140034 (Nov. 19, 2008) (unpublished order under Supreme Court Rule 23).\nIn September 2009, the Illinois Supreme Court denied defendant\u2019s petition for leave to appeal but issued a supervisory order (People v. Yusuf, 233 Ill. 2d 598, 914 N.E.2d 489 (2009) (nonprecedential supervisory order on denial of petition for leave to appeal) (No. 107674)) directing this court to vacate our order and to reconsider in light of People v. Glasper, 234 Ill. 2d 173, 917 N.E.2d 401 (2009). In accordance with the supreme court\u2019s directions, we vacated our prior judgment and reconsidered in light of Glasper. We reversed defendant\u2019s conviction and remanded the matter for a new trial. People v. Yusuf, 399 Ill. App. 3d 817, 928 N.E.2d 143 (2010).\nIn January 2011, the supreme court issued a supervisory order (People v. Yusuf, 239 Ill. 2d 588, 940 N.E.2d 1152 (2011) (nonprecedential supervisory order on denial of petition for leave to appeal) (No. 110420)) directing this court to vacate our order and to reconsider in light of People v. Thompson, 238 Ill. 2d 598, 939 N.E.2d 403 (2010). In accordance with the supreme court\u2019s directions, we vacate our prior judgment and reconsider in light of Thompson to determine whether a different result is warranted. After considering the supreme court\u2019s reasoning in Thompson, we affirm defendant\u2019s conviction.\nOn November 20, 2006, the State charged defendant with two counts of armed robbery. At trial, Sarad Chandra, a convenience store clerk, testified that shortly after 10 p.m. on November 19, 2006, a man carrying a gun and dressed in dark clothing and a ski mask came into the store and demanded money. Chandra opened the register, and the man took the money and ran out of the store. The store surveillance tape was played for the jury.\nThe State also presented evidence at trial establishing that on the evening of November 19, 2006, Maokun Li left his office and was walking to his vehicle when defendant, wearing a black ski mask, appeared from behind a bush. Defendant produced a gun and ordered Li to give him his wallet and cellular phone. Defendant also demanded Li\u2019s personal identification number for the debit card. Li testified defendant also threatened to shoot him. According to Li\u2019s testimony, defendant ordered Li to lay on the ground and not to look at him. Li called the police after defendant fled. The police arrested defendant shortly thereafter.\nDefendant did not present any evidence at trial. After considering the State\u2019s evidence, closing arguments, and jury instructions, the jury acquitted defendant of the armed robbery of Chandra but found him guilty of the armed robbery of Li. The trial court sentenced defendant as stated.\nOn appeal, defendant claims the trial court erred where it failed to comply with the mandates of Supreme Court Rule 431(b). Specifically, defendant argues the procedure used by the court failed to allow the venire an opportunity to respond to or be questioned on the Zehr principles, i.e., it failed to comply with the directives of Rule 431(b). See People v. Zehr, 103 Ill. 2d 472, 477-78, 469 N.E.2d 1062, 1064 (1984).\nIn this case, defendant\u2019s trial counsel did not object at the time of the trial court\u2019s error. In addition, defendant\u2019s posttrial motion did not allege the court failed to comply with Rule 431(b). As a result, the issue has been forfeited. See People v. Hestand, 362 Ill. App. 3d 272, 279, 838 N.E.2d 318, 324 (2005). Defendant, however, argues the court\u2019s failure to comply with Rule 431(b) constitutes plain error affecting his right to a fair trial by an impartial jury.\nA reviewing court may disregard a defendant\u2019s forfeiture and review the issue under the plain-error doctrine to determine whether reversal is required. People v. Lewis, 234 Ill. 2d 32, 42, 912 N.E.2d 1220, 1226 (2009). The plain-error doctrine allows a reviewing court to consider forfeited error when (1) the evidence is closely balanced or (2) the error is so serious that it affected the fairness of the defendant\u2019s trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence. People v. Walker, 232 Ill. 2d 113, 124, 902 N.E.2d 691, 697 (2009). Under either prong of the plain-error analysis, the defendant has the burden of persuasion. Lewis, 234 Ill. 2d at 43, 912 N.E.2d at 1227.\nBefore reviewing the issue under the plain-error doctrine, however, we must first determine whether any error occurred. People v. Piatkowski, 225 Ill. 2d 551, 565, 870 N.E.2d 403, 411 (2007). This court reviews de novo a trial court\u2019s compliance with a supreme court rule. People v. Young, 387 Ill. App. 3d 1126, 1127, 903 N.E.2d 434, 435 (2009).\nIn Zehr, the Supreme Court of Illinois held a trial court erred during voir dire by refusing defense counsel\u2019s request to ask questions about (1) the State\u2019s burden of proof, (2) defendant\u2019s right not to testify, and (3) the presumption of innocence. Zehr, 103 Ill. 2d at 477, 469 N.E.2d at 1064.\nThe supreme court amended Rule 431(b) to assure compliance with its decision in Zehr. Adopted March 21, 2007, and effective May 1, 2007, the rule now reads as follows:\n\u201c(b) The court shall ask each potential juror, individually or in a group, whether that juror understands and accepts the following 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 the defendant\u2019s failure to testify cannot be held against him or her; however, no inquiry of a prospective juror shall be made into the defendant\u2019s failure to testify when the defendant objects.\nThe court\u2019s method of inquiry shall provide each juror an opportunity to respond to specific questions concerning the principles set out in this section.\u201d (Emphases added.) Ill. S. Ct. R. 431(b) (eff. May 1, 2007).\nThe committee comments provide as follows:\n\u201cThe new language is intended to ensure compliance with the requirements of People v. Zehr, 103 Ill. 2d 472[, 469 N.E.2d 1062] (1984). It seeks to end the practice where the judge makes a broad statement of the applicable law followed by a general question concerning the juror\u2019s willingness to follow the law.\u201d Ill. S. Ct. R. 431(b), Committee Comments (eff. May 1, 1997).\nAs of May 1, 2007, the plain language of Rule 431(b) requires a trial court to (1) sua sponte question each potential juror as to whether he understands and accepts the Zehr principles (2) in a manner that allows each juror an opportunity to respond. As the voir dire in this case occurred in October 2007, after the amendment became effective, the court was required to comply with the rule as amended May 1, 2007.\nAt the beginning of voir dire, prior to the jurors being sworn in, the trial court addressed the pool as follows:\n\u201cI want to go over some of those [jury] instructions with you now so that you can keep them in perspective as you listen to the testimony. The first instruction is *** that the defendant is presumed to be innocent of the charge[s] against him [(Rule 431(b) principle (1))]. This presumption remains with him throughout every stage of the trial and during your deliberations on the verdict, and is not overcome unless from all of the evidence in this case, you are convinced beyond a reasonable doubt that he is guilty [(Rule 431(b) principle (2))].\nThe State has the burden of proving the guilt of the defendant beyond a reasonable doubt, and this burden remains on the State throughout the case. The defendant is not required to prove his innocence [(an apparent reference to Rule 431(b) principle (3))]. In connection with the last sentence, this defendant, as does every citizen, possesses an absolute right not to testify at his trial if he so chooses. If the defendant chooses not to testify, you will receive an instruction that states that the fact the defendant did not testify must not be considered by you in any way in arriving at your verdict [(Rule 431(b) principle (4))].\u201d (Emphases added.)\nDuring voir dire, the trial court questioned the potential jurors about their previous experiences with the legal system and whether they were familiar with the defendant, attorneys, or witnesses. The court also asked each juror whether he or she could think of any reason why he or she could not be \u201cfair and impartial.\u201d While each of the 12 jurors selected to hear the case answered those questions in the negative, the court did not conduct Zehr questioning of individual jurors. As a result, the court never directly questioned the individual jurors regarding their understanding of the Zehr principles as required by the second paragraph of amended Rule 431(b).\nPrior to deliberations, the trial court gave the jury Illinois Pattern Jury Instructions, Criminal, Nos. 2.03 and 2.04 (4th ed. 2000) (hereinafter, IPI Criminal 4th), regarding (1) defendant\u2019s presumption of innocence, (2) the State\u2019s burden of proof, and (3) \u201c[t]he fact that defendant did not testify must not be considered by [the jurors] in any way in arriving at [a] verdict.\u201d\nIn this case, the record shows the trial court did not fully comply with Rule 431(b). While the court advised the venire en masse of the four Zehr principles, it did not pose the specific questions of whether the jurors understood and accepted all four of those principles during voir dire. See Ill. S. Ct. R. 431(b) (eff. May 1, 2007) (\u201cThe court\u2019s method of inquiry shall provide each juror an opportunity to respond to specific questions concerning the principles set out in this section.\u201d). As a result, the court in this case did not follow the mandate of Rule 431(b), and this failure to comply was error.\nHaving found error, we next consider whether the error was so serious that it affected the fairness of defendant\u2019s trial. We note defendant does not argue the evidence was closely balanced. Instead, defendant contends the error \u201callowed for the possibility of a partial jury, which affects the integrity of the judicial process and ignores [his] constitutional rights to a fair trial.\u201d As a result, we confine our review to the second prong of the plain-error analysis. See People v. Blue, 189 Ill. 2d 99, 139, 724 N.E.2d 920, 941 (2000) (where a defendant has been denied the right to a fair trial, a reviewing court must remedy the error to preserve the integrity of the judicial process without regard to the evidence against the defendant).\n\u201cTo determine whether defendant\u2019s right to a fair trial has been compromised, we employ the same test that this court uses whenever it applies the second prong of the plain error test.\u201d Blue, 189 Ill. 2d at 138, 724 N.E.2d at 940. We consider whether a substantial right has been affected to the extent we doubt that defendant\u2019s trial was fundamentally fair. Blue, 189 Ill. 2d at 138, 724 N.E.2d at 940-41. Regardless of the weight of the evidence presented against defendant, a new trial is essential where the trial court\u2019s error threatens the integrity of the judicial process. Blue, 189 Ill. 2d at 139, 724 N.E.2d at 941.\nIn Glasper, 234 Ill. 2d at 189, 917 N.E.2d at 411-12, the supreme court addressed whether (1) the trial court\u2019s failure to comply with preamended Rule 431(b) requires a reviewing court to presume prejudice and automatically reverse defendant\u2019s conviction or (2) the error is subject to harmless-error analysis. While the supreme court held the trial court erred by not fully complying with Rule 431(b), it (1) declined to find that a violation of Rule 431(b) is per se reversible error and (2) concluded the error was harmless where (a) no evidence was presented that the jury was biased and (b) the evidence against the defendant was overwhelming. Glasper, 234 Ill. 2d at 199-201, 917 N.E.2d at 417-18.\nWe note in Glasper, the supreme court expressly limited its holding to the preamended version of Rule 431(b). As a result, that decision does not purport to govern the application of amended Rule 431(b), which is at issue in this case. Glasper, 234 Ill. 2d at 200, 917 N.E.2d at 418 (emphasizing \u201cthat this holding is limited to the version of Rule 431(b)(4) that was in effect at the time of the instant trial, and would not necessarily apply to subsequent versions of the rule\u201d).\nIn Thompson, however, the supreme court clarified Rule 431(b) questioning is not indispensable to a fair trial and a violation thereof does not necessitate automatic reversal under the second prong of the plain-error analysis. Thompson, 238 Ill. 2d at 614-15, 939 N.E.2d at 414. Specifically, the supreme court found the following:\n\u201cA finding that defendant was tried by a biased jury would certainly satisfy the second prong of plain-error review because it would affect his right to a fair trial and challenge the integrity of the judicial process. Critically, however, defendant has not presented any evidence that the jury was biased in this case. Defendant has the burden of persuasion on this issue. We cannot presume the jury was biased simply because the trial court erred in conducting the Rule 431(b) questioning.\u201d Thompson, 238 Ill. 2d at 614, 939 N.E.2d at 413-14.\nThe Thompson court held that because the defendant had failed to establish the court\u2019s Rule 431(b) violation resulted in a biased jury, the defendant had failed to meet his burden of showing the error affected the fairness of his trial and challenged the integrity of the judicial process. Thompson, 238 Ill. 2d at 615, 939 N.E.2d at 414.\nThe supreme court also made it clear its reasoning applied regardless of whether the analysis took place under the amended or pre-amended version of the rule. Thompson, 238 Ill. 2d at 614, 939 N.E.2d at 414 (\u201cthe failure to conduct Rule 431(b) questioning does not necessarily result in a biased jury, regardless of whether that questioning is mandatory or permissive under our rule\u201d). The court found while amended Rule 431(b) serves to promote the selection of an impartial jury, it is only one method of helping ensure the selection of an impartial jury and \u201cis not the only means of achieving that objective.\u201d Thompson, 238 Ill. 2d at 614, 939 N.E.2d at 414. Finally, the supreme court held a Rule 431(b) violation \u201cdoes not implicate a fundamental right or constitutional protection.\u201d Thompson, 238 Ill. 2d at 614-15, 939 N.E.2d at 414. Instead, a Rule 431(b) violation \u201conly involves a violation of [supreme court] rules.\u201d Thompson, 238 Ill. 2d at 615, 939 N.E.2d at 414.\nIn this case, all four Zehr principles were addressed to each juror at some point during voir dire, and the evidence presented at trial against defendant was overwhelming. In addition, the jury received IPI Criminal 4th Nos. 2.03 and 2.04, regarding the presumption of innocence, the State\u2019s burden of proof, and defendant\u2019s decision not to testify. Most important, defendant does not show the jury acted with bias in reaching its verdict. See Thompson, 238 Ill. 2d at 611, 939 N.E.2d at 412 (\u201cDespite the trial court\u2019s failure to comply with Rule 431(b) in this case, there is no evidence that defendant was tried by a biased jury.\u201d). We conclude the court\u2019s error did not rise to the level of plain error. Accordingly, defendant has forfeited his Rule 431(b) claim.\nFor the reasons stated, we affirm the trial court\u2019s judgment. As part of our judgment, we grant the State its $50 statutory assessment against defendant as costs of this appeal.\nAffirmed.",
        "type": "majority",
        "author": "JUSTICE McCULLOUGH"
      }
    ],
    "attorneys": [
      "Michael J. Pelletier, Karen Munoz, and John M. McCarthy, all of State Appellate Defender\u2019s Office, of Springfield, for appellant.",
      "Julia Rietz, State\u2019s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and Denise M. Ambrose, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. AHMED A. YUSUF, Defendant-Appellant.\nFourth District\nNo. 4\u201408\u20140034\nOpinion filed April 14, 2011.\nMichael J. Pelletier, Karen Munoz, and John M. McCarthy, all of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nJulia Rietz, State\u2019s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and Denise M. Ambrose, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People."
  },
  "file_name": "0435-01",
  "first_page_order": 451,
  "last_page_order": 458
}
