No. 3--08-0051

______________________________________________________________________________ Filed November 18, 2009 IN THE AP PE LLATE COU RT OF ILLIN OIS THIR D DI STRICT A.D., 2009

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF IL LI NOIS, ) of the 10th Judicial Circuit, ) Peoria Co

unty , Illi nois, Plaintiff-Appellee, ) ) v. ) No. 06–CF–1579 ) VICT OR R US SE LL, ) Honorab le ) Stuart P. Borden, Defendant-Appellant. ) Judge, Presiding.

______________________________________________________________________________ JUSTICE WRIGH T deliver

ed the opi nion of the

court:

______________________________________________________________________________ On Decemb er 19, 20 06, the Sta te char ged de fendant

Victor Ru ssell by

indictmen

t with four alternate counts of first degre e murder (720 IL CS 5/ 9-1(a)(2) (West 2004)) alleging defendant, without legal justification, knowingly did acts that caused the death of Carla Spires. A jury found def

endant guilty of

first degree murder. On January 11, 2008, the court sentenced defendant to 50 ye ars in the Illinois Department of Correc tions (DOC) after deny

ing defendant’s motion for new trial. Defendant filed a timely notice of appeal. On appeal, defendant arg

ues that the State did not prove that he committed the murder beyond a re asonable doubt. Additionally, defe ndant contends that the trial court committed reversible error when it failed to individually question the jurors regarding the princ ipals required by Supreme Court Rule 431(b). Of ficial Reports Advance Sheet No. 8 (April 11, 2007), R. 431,2

eff. May 1, 2007. We affir m. FACTS On December 8, 2006, the State filed an information, followed by a subsequent indictmen t on Dece mber 19, 2 006, cha

rging defenda nt Victor Russell wit

h four al ternate counts of first degree murder. Count I alleged defendant, without lawful justification and with intent to kill Carla Spires, knowingly c ut Carla Spires on the neck with a sharp object thereby causing the death of Carla Spires pursuant to section 9-1(a)(1) of the Criminal Code of 1961 (720 IL CS 5/9- 1(a)(1) (West 2004)). Count II alleged defendant, without lawful justification and with the intent to do great bodily

harm to Carla Spires, cut Carla Spires on the neck with a sharp object ther eby causing the death of Carla Spires pursuant to section 9-1( a)(1) of the Criminal Code of 1961 (720 IL CS 5/9-1(a)(1) (West 2004)). Count II I alleged de fendant, without lawful justification, knowingly c

ut Carla Spires on the neck with a sharp object knowing said ac t created a strong probability of death to Carla Spires thereby c ausing the death of Carla Spires pursuant to section 9-1(a)(2) of the Criminal Code of 1961 (720 I LCS 5/9-1(a)(2) (West 2004)). Count I V alleged defendant, without lawful justification, knowingly cut Carla Spires on the neck with a sharp object knowing said act would create a strong probability of

great bodily

harm to Carla Spires thereby c ausing the death of Carla Spires pursuant to section 9-1(a )(2) of the Criminal Code of 1961 (720 IL CS 5/9-1(a)(2) (West 2004)). Defendant demanded a trial by jury

, which began on October 22, 2007. Only those portions of voir dire relevant to the issues at bar are included in this statement of facts. The court’s introductory statement to the entire potential jury pa nel included: “The defendant is to be presumed innocent of the c harge in the3 indictment, and this presumption remains throughout the trial with the defenda nt until y ou’ve be en satisf

ied by the evide nce bey ond a rea sonable doubt as to the guilt of the defendant, and the burden of pr oving the guilt of the defendant bey

ond a reasonable doubt is on the State. The law does not require the defendant to prove his innocence. The def endant is not required to present any evidenc e or testify. If he chooses not to testify in this case , it cannot be held against him.” The judge also informed the jurors that he would give written instructions to them at the close of the case . The judg e stated that it wou

ld be thei r “absol ute duty to acce pt the law as defined in these instructions and to follow the court’s instructions of law.” During the individ

ual quest ioning of the jurors, the cou

rt asked each po tential ju

ror, in part, the following questions with minor variations from juror to juror: whether the juror had any bias against a person simply because he has been charg ed; whether the juror would follow the court’s instructions regarding the law ; whether the juror would decide the case without sy mpathy and prej udice; whether the juror would be ab le to giv e both the State and the defe ndant a f air trial; and whether the juror would wait until the end of the entire ca se before forming a final opinion ab out the ve

rdict. Du ring que stioning

of the va rious pote ntial jurors, the c ourt also randomly asked a

dditional questions. When questioning the first impaneled juror, after the court aske d the question about waiting until the e

nd of the e

ntire ca se befor

e forming a final o pinion, the

court al so explaine d: “The reason I

ask that is you will find out the State has a burden of proof. They alwa

ys have the bur

den of proof. They

will put on evidence. The defendant may put on evidence . If the defenda nt does put on evidence, there could be4 rebutta l evidenc e. I

t could g o back a

nd forth a little bit. What I’ m asking you to do is to withhold any opinion about the verdict until the case is complete ly over and you are

back deliberating with y

our fellow jurors, and y

ou indicated you would do that?” The court expounded on some similar issues while questioning other potential jurors. Durin g voir dire , the prosecutor asked some, but not all, of the potential jurors whether they would be able

to sign a guilty

verdict if they f

ound the State had proven its case bey ond a reasonable doubt and, likewise, whether they would be able to sign a not guilty verdict if they found the State had not proven its case bey ond a reasonable doubt. Defendant’s attorne y did not ask any questions of the juror s relevant to Supreme Court Rule 431(b). After opening statements, the State called Samuel Stevens as its first witness. He testified that he was an emergenc y medical tec

hnician on December 5, 2006, and responded to a call at 1321 Martin Luther King Drive in Peoria, Illinois. He stated, when he arrived at the scene and walked around the front of a car , he located a female, later identified as Car la Spires (Spires), located between the “stairs coming down” and the car. Upon further observation, he state d he observed several deep lacer ations to her neck, her body was cold, and he determined that she was dead. Kelly

Williams, Spir

es’ niec e, state d Spires da ted defe ndant “of f and on a pproximate ly two to thre e y ears.”

Williams tes tified tha

t she cal led defe

ndant’s c ell phone

at appro ximately 7:22 p.m. on December 5, 2006, and spoke to defendant and then spoke to Spires. On that evening, she said Spires’ 12-y ear-old daughter, Rosaliy n Artis-Spires (Rosaliyn), was he lping her move. At a

pproximate ly 1 0 p.m. on tha t evening , Williams dr

ove Rosal iyn

back to th e Spires’ residence and, when Rosaliy n got to the steps of the residence, she ran ba ck to Williams’ car5

screaming that something was wrong with her mom. When Williams got out of her car, she saw Spires and called 911. The next witness, 15-year- old Secura Rutherford (Secura), testified that on De cember 5, 2006, she lived across the street from Spires’ house. She stated, betwee n 7 and 8 p.m. on that date, she heard screaming a nd looked out her window and saw a black man and a Cauc asian lady on the stairs across the street. She said the man wore a “ tannish” coat, a “skullcap,” and dark jeans. She said she recognized the man and the woman be cause they lived across the street and she saw them come a

nd go. She

said she had seen b oth of the m outside sh

oveling at their residence the day

before the incident, and she recog nized them as the same male and female. Secura said the man and woman were “kind of wrestling” and he was pulling her downstairs with his back to her window. She testified he “kind of lost [his] grip and he fell down the stairs, got back up and pulled her down.” She said whe n the man pulled the woman down, they were on the other side of the car for a while, but she could not see them because the car blocked her vision . At that po int, she sa id she clo sed her w

indow. Af

ter abou t 10 or 15 mi

nutes, she testified, she looked outside again. Then, she saw the ma n walk toward the car, pick something up, walk away from the car, and then, in an underhand motion, throw what “looke d like it was a knife or something” near the woods by the garbage ca

ns. She testified that the man then walked up the street to where she could no long er see him, toward “Western” (Avenue)

. She said she did not see the woman again after the man pulled her down and out of her view by the side of the car. Secura s aid she w ent to the police sta

tion on tha

t evening around 1 a.m. and l ooked at a photo lineup. She testified that she was unable to identify anyone in that photo lineup. When shown the lineup photographs in court, Secura said she now saw defendant’s photo in the lineup.6

Secura stated that she usually sees defendant in a skullcap or an “af ro” and the photo lineup showed de fendant

wearing braids. Se cura al so testifi ed that sh e gave a videota ped state ment to the police at that time. Secura said the next day she again went to the police station and looked at an “in-person” lineup and she identified defenda nt as the man struggling with the Caucasianwoman the previous night. She testified that she had no doubt in her mind that the man in the inperson lineup was the same man she saw pull the woman down the stairs on Dec ember 5, 2006. She testified that she could see the two people clearly on December 5 because Spires had a light shining outside. She clarified that defendant was wea ring the same jacket and hat on Dec ember 5 that he wore the pr

evious da y w hen he shoveled sn

ow. Secur

a then ide ntified de fendant , in court, as the man she saw struggling with the female on the night of December 5. The next witness, Becky

Rutherford (Becky

), testified that on December 5, 2006, she and her daughter, Secura, had be en living with her mother at 1322 Martin Luthe r King Drive for a couple of weeks. On December 5, 2006, B ecky notice d a black man walk past her window around 7 or 8 p.m. w

hile she w as watch

ing tele vision. She

said he w as 5 fee

t 5 inches or 5 fee t 6 inches ta ll, stocky , and wea ring a brown jacket, a da

rk skullc ap, and je ans. She o bserved him walk by hea

ding “toward Western” (Avenue) pa tting the pockets of his pants. She then observed him turn ar

ound and w alk back

“toward MacArth ur” (Hig hway ) which w as towar

d the Spire s’ house. Becky

stated the man walked out of her view from the window, he then r eentered her view and was again heading toward Western Avenue, where he wa lked down a side street several blocks away a

nd out of her view. The witness testified that she had previously seen this man a couple of day s earlier shoveling snow with a Caucasian fe male at the house across the street from her residence. She said she had a conve rsation with him on that date and recognized him. Later that evening , Becky said, she and her daughter went to the police station to give a7

statement. She said the police separated her from her daughter and took a videotaped statement from her that evening. The police also showe d her a photo lineup and she could not identify any one in the photogr aphs. She

said she a

nd Secur a retur ned to the police sta

tion the ne

xt day to look at an “in-person” lineup. During the in-person lineup, Becky said, she identified defendant as the man who walked past her window the previous evening . While testifying, Be cky stated that she had only see

n defendant three times prior to that evening and, e ach time, he alway s had the skullc ap on his he ad. She sa id she did n

ot recog nize him in th e photo lineup bec ause his hair was different. Becky

identified defendant, while in the courtroom, as the same person she observed walking past her window on Dec ember 5, 2006. Becky stated that she did not see defendant’s van on December 5, 2006. Police of ficer K enneth Snow testif

ied that h e was the

crime sc ene technician a ssigned to the Spires case. He stated that he was called to the Spires’ residence on December 14, 2006, where he recovered a

folding box cutter approximately 20 fee t into the wooded area behind the house and about 180 feet west of the staircase lea ding from the house to the garag e. He said the box cutter had a folding blade and some visible hairs and blood on it. Detective Shannon Walden testified she conducted the in-person lineup at the police station on December 6, 2006, regarding the Spires murder investigation. During this lineup, Walden said, she took Becky , individually, into the viewing room, and B ecky identified defendant out of the lineup. Next, she took Secura separately into the viewing room, and Secura identified defendant out of the lineup. The State then called Rosaliyn Spire s, the victim’s 12-year -old daughter, to testify

. Rosaliyn stated that approximately a month before her mother died, she woke up from slee ping and heard defendant and her mother arguing. She went downstairs and saw he r mother on the8

floor between the doorway and “he was like pulling her outside.” She further explained that her mom was in the living room on the floor and defendant was drag ging her outside by

the arms. Rosaliyn stated that she told defenda nt to let go of her mother, and he release d her. She said she observe d scrape s on her mo ther’s k nees af ter that i ncident. Jo hn Pe te rs te st if

ie d t ha t h e k ne w S pi re s b ec au se th ey w or ke d a t t he Ca te rp il la r f ac il it y, and they occ asionally socialized toge ther. Peters recalled an incident that occurr ed on June 3, 2006, outside his parents’ house in the early morning hours after Spires, defendant and Pete rs had been out d

rinking that eve ning. Ar ound 1 to 2 a .m., defe

ndant took

out a pock

etknife to clean his fingernails. Peters mentioned that his son collected knives, and defe ndant handed the folding pocket knife to Peters. After returning the knif e to defendant, Peters said defendant stood up, looked at Spires, and while putting the knife in his pocket said, “I f I can’t have you nobody

will.” Dr. Violette Hnilica, a forensic pathologist, testified she per formed an autopsy

on Spires on December 6, 2006. Hnilica stated that she examined Spires’ body and concluded the fatal wounds were the slash marks to the neck. Specifically , she described the uppermost slash, running 10 1⁄2 inches long and 4 1⁄2 inches deep, f rom the left neck to the right side, cutting through the carotid artery , the jugular vein, the lary nx cartilage and the right ear, a nd stated it was the caus e of dea

th. There were a t least thr ee other slash mar

ks on the ne ck, meas

uring 5 3 /8 inches, 5 3/8 inches, and 5 inches in lengths, and all starting on the le ft side and ending on the right sid e of the neck. Dr . Hnilica stated sh e also obs erved ot her cuts , contusions and abrasions, including: a contusion on the left side of the face; a contusion on the lef t side of the scalp where hair had been pull ed out; a t

wo-inch long cu t on the le ft shoulde

r; tiny scrape s on both el

bows; bruises on the hands; and several scrapes in sever al different directions on the back side of the body. She concluded a

ll of these injuries occurred before dea th. There were 12 different9

bruising sites, scattered all over the head, involving the scalp and the fascia tissue under the scalp. The State then show ed Dr. Hn

ilica a ut ility knife be longing

to Spires, and the witness stated, in her exper t opinion, t

hat the kn ife possib ly c ould have

caused a ll of the w ounds, including the deepest wound, if Spires’ head was for cefully pulled bac

k by gr abbing her hair, consistent with some of Spires’ hair being pulled out, and then forcef ully using the utility

knife across her neck. During cr oss-examination, though, the doctor testified that Spires’ utility knife was not typically

“the kind of knife that would cause a ten-inch, four a nd a half inch deep wound.” The State then showed Dr. Hnilica the knife rec overed from defendant’s person at the time he wa s arres ted, and she deter mined tha t that knif e could ha

ve made t he wounds , but most likely did not cause the injuries bec ause the serrated edge would have left some serration patterns in the cut s, which w ere not present. The doct or opined that neither of tho se knives was the li

kely cause of Spires’ f atal injur ies. Gail Jackson testified that she was working at a bar ca lled “Slickers” on December 5, 2006. She said she had known defendant as an acqua intance for y

ears. She said she also knew Spires because they

both were bartenders at differe nt bars and occasionally

ran into each other. She said she saw de fendant and Spire s walk into

Slickers on Dece mber 5, 20 06, someti

me between 6:30 and 8:30 p.m. She recalled they walked into the bar separately, about five minutes apart. She said Spires ordered a drink and stood and watc hed a game of pool. When defendant arrived, he ordered a drink and stood by the dart machine. After a short time, she saw def endant approach Spires and it looked “like there was little alterca tion” between them. She explained that defendant got a little loud when talking with Spires, and she wa lked away

from him. A little later, Spires approached the bar to order a drink. About five minutes later,10

defendant came over near Spire s and also ordered a drink. Jackson testified that she overhear d defendant say

loudly to Spires, “I f you don’t want me just tell me.” Jackson stated Spires just sat there a nd was ve ry quiet. The

next thing

Jackson not

ed was th at both de fendant ’s and Spir es’ seats were empty , and she did not see them again that evening

. Jackson said they looked like they had just gotten off of work at Caterpillar beca use they were wearing their Cater

pillar name tags around their necks. Jackson said defe ndant wore a dark jacket that eveni

ng but wa s not cer

tain abou t the colo r. She sai d he did no t wear a hat, and h

is hair was braided. The parties stipulated Laciy a Spires would testify that she is Spires’ daug hter. On December 14, 2006, she walked in the wood line near the residence on Martin Luthe r King Drive when she noticed a red-colored knife a t the base of a tree. When she looked more closely at the knife, she noticed the blade was partially open and there was some ty pe of substance on the blade. She said she did not touch the knife and immediately ran back to the house and called the police. Laciy

a would testify that she ca lled defendant’s cell phone on December 5, 2006, at 7:50 p.m. and spoke to both defendant and Spires, and they told her they wer

e at Slicker’s bar. The parties stipulated that if Detective Katie Bae r testified, she would state that when she and Detective Ron Gibbons interviewed Secura and B ecky Rutherf ord at the police station on December 6, 2006, Secura and Be cky wer e both present together during the inter views. Baer would testify that they

were not together when police showe d them the photo lineup. Finally, the State ca

lled Officer Eric Ellis, who testified he acted as a crime scene technician at the 1321 Martin Luther King Drive residence on Dec ember 5, 2006. He stated he took photos of the scene from across the street near the Rutherford residence, which showed floodlighting outside the 1321 Martin Luther King Drive address. On Dece mber 6, 2006, he11

photographed defendant at the police station and obse rved vertical scratch marks located on defendant’s lower left leg. He said he examined all of the clothing taken from defendant on Decemb er 6, 200 6, and fo und no evi dence o f blood on t hose items . The State

rested a fter this witness, and the court denied defendant’s motion for directe d verdict. Phy llis Ru ssell , def

enda nt’s mother, te stifi ed th at de fend ant li ved with he

r and her exmother-in-law on December 5, 2006. On that date, Russell stated that she sa w defendant betwee n 2:30 p.m. a

nd 3:30 p.m. at the Peoria post o ffice on State Str eet. At that time, Ms

. Russell said defendant wore a black hat with a brim and his steel-toed work shoes. She stated she did not see defendant again on Dec ember 5. She testified that at approximately 9:30 p.m. on Decembe r 5, she woke up and noticed that the v an, drive

n primari ly b

y de fendant , was par

ked in the drivewa y a t her re sidence . Russell stated that, around 9:30 to 9:45 p.m. on December 5, 2006, the police came to the house looking for defendant but did not locate him. Ms. Russell testified that the van was no longer in the driveway a

round 6 or 7 a.m. on December 6 when she woke up. Catherine Jones testified that defendant was the father of her two children. On December 5, 2006, she attempted to call defendant around 5 p.m. and 8 p.m. but did not reach him. She said defendant returned her call “a little before 9:00 p.m.” from his house phone. During that conversation, defendant asked her if she w ould call him early on De cember 6 to make sure he woke up for work. She said, after that phone ca ll, she drove over to his residence to pick him up around 9:10 p.m. on December 5. At that time, defendant was we aring dark, faded black jea ns, a black or blue shirt, and brown or tan casual shoes, and he did not wear a jacket or coat that evening . She did no t recall whether defenda nt wore a cap at th at time. She

stated sh e took him back to her residence, where he stayed the e

ntire night until she left for work on December 6,12

2006, around 3:45 a.m. At that time, she took defendant back to his vehicle at 1914 Br oadway. Jones testif

ied that d efenda nt paid he r $100 to $2 00 for ch

ild suppor

t every Friday to every othe

r Friday . The parties presented a stipulation that defendant’s ce ll phone records verified that Jones made a cell phone call to defendant’s ce ll phone at 8:55 p.m. that lasted 26 seconds. The parties rested and counsel presented the ir closing arguments. The court then instructed the jury as to the la w, including the required jury instructions as set forth under the pattern jury instructions per taining to Rule 431(b) principles. After deliberation, the jury found defendant guilty

of first degree murder. De fendant did not file a posttrial motion. On January 11, 2008, the court sentenced defendant to a 50-y ear commitment to the Illinois Department of Corrections. Defendant appealed his conviction. ANAL YSIS Defendant raises two issues on appeal. First, def endant contends that the State provided insufficient evidence to prove that defendant murde red Spires beyond a

reasonable doubt. Second, defendant contends that the trial court failed to comply with Supreme Court Rule 431(b) (Offic ial Repor

ts Advanc e Sheet N o. 8 (Apr il 11, 2007) , R. 431, ef

f. May 1, 2007), resulting

in prejudice and asks that defendant be g ranted a new trial. The State asserts t he evide nce esta blished de fendant ’s guilt b eyond a rea sonable d oubt. Additiona

lly, the State

argue s that def

endant ha s forfe ited the c ourt’s noncomplia nce with Supreme Court Rule 431(b) because defendant did not object during the course of voir dire

and did not include the issue in a posttrial motion. The State also argues, in the alternative, that the judge did not commit reversible error under the plain e rror doctrine. A. Sufficiency

of the Evidence13

The due process clause of the fourtee nth amendment requires the State must prove, beyond a re asonable doubt, every element necessary

to constitute the crime with which a defendant is charged. People v. Cunningham, 212 Ill. 2d 274 , 278 ( 2004) , citi ng In re Winship, 397 U. S. 35 8, 364 , 25 L. Ed . 2d 36 8, 375 , 90 S . Ct. 1068, 1073 ( 1970) . Whe n cons ideri ng a challenge to the sufficiency of the State's evidence, the reviewing court’s function is to determine whether, after viewing the evide nce in the light most favorable to the prosecution, any rational trier of fact could have found the essential ele ments of the crime bey

ond a reasonable doubt. Cunningham, 212 I ll. 2d at 27 8. This sta ndard of review r equires the revi ewing c ourt to all ow all reasonable inferences from the r ecord in favor of the prosecution. Cunningham, 212 Ill. 2d at 280. However, it is not the province of the reviewing c ourt to retry a de fendant but to determine “‘whether the r

ecord e vidence could re asonably

support a finding of guilt bey ond a rea sonable doubt.’” Cunningham, 212 Ill. 2d at 2 78, qu otin g Jackson v. Virginia, 443 U.S . 30 7, 3 18, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2788 -89 (1979 ); People v . Newborn , 379 Ill. App. 3d 240, 247 (2008). T

he revie wing co urt will re verse a convicti on only

where “ the evide nce is so unreasonable, improbable, or unsatisfactory as to justify a rea sonable doubt of defendant's guilt.” People v . Smith , 185 Ill. 2d 532, 542 (1999). In this case, defenda

nt only challeng es the sufficiency of the State’s evidence rega rding the element of identification that he, in fact, was the individual who caused the death of Spires. To support this argument, defendant stresses that he did not confe ss to killing Spires nor did he make any state

ments connecting him to this crime. Further, defenda nt points out that the police did not find Spires’ blood on defendant’s clothing or in defendant’s van, a nd did not recover any fingerprints from the box cutter knife. Althoug h there w as no phy

sical evidence l inking de fendant to the cr ime scene, the Sta

te14

present ed ey ewitness testimony

and circ umstantia l evidenc e to prove

its case. First, th e State produced Secura Rutherford, who testified that she hea rd screaming on December 5, 2006, “sometime between 7:00 and 8:00 p.m.” According to Secur a, when she looked out of her bedroom window, she observed defendant “wrestling” with Spires on the steps and then he “kind of lost grip and he fell down the stairs, got bac k up and pulled her down.” Secura said she recognized defendant beca use she had seen him shoveling snow at Spire’s residence a day or two earlier. She said he was wearing a “tannish” coat, a “skull cap,” and dar k jeans. Secura said she lost sight of what was happening when Spires and de fendant fell to the side of the car because the car blocked her vision. Consequently , she stopped looking out the window. Several minutes later, Secura returned to the window and obser ved defendant pick something up, which looked like a “knife or something,” near the c ar and throw it near the woods by the garbage ca

ns. Another witness, Becky

Rutherford, also placed defendant at the sce ne of the crime on the evening of December 5, 2006. B ecky testified she noticed a black man, whom she identified as defendant, walk back and forth past her w indow around 7 or 8 p.m. while she was watching television. She also described his clothing as a brown jacket, a da rk skullcap, and jeans. Althoug h neither witness c ould ident

ify defenda nt from a p

hoto lineu

p, the next d

ay they both separately and positively identified defe ndant during an in-person lineup as the person they saw the evening before at the Spires’ r esidence. Additionally, the jury

heard Rosaliyn Spires testify that she witnessed a physic al alterca tion betwe en defe

ndant and Spires one

month prio r to Spire s’ death . During this incide

nt, Spires was on the floor and defendant was try ing to drag Spires out the front door by grabbing her arms. Another witness, John Peters, testified that he, Spires, and Jackson socialized together on June 3, 2006. On that date, Peters overheard defendant tell Spires, “If I can’t have you,1 Initially , the State contends that defendant waived or forfe ited this issue on appeal

because defenda nt failed to discuss

plain er ror in his a

ppellate brief. D efenda

nt’s initia l appella te brief argues that the trial court’s fa ilure to comply with Rule 431 is “reversible error.” Additionally, defendant a rgued in his brief that the State’s “case a gainst defendant was not strong” and the c ourt’s fa

ilure to c omply

with Rule 4 31(b) in t

his case “was pa rticular ly prejudicial.”Although not specifically called “plain error” in his brief, we c onclude defendant sufficiently ar

gued the elements of the plain error doc trine so as not to forfeit the argument on 15 nobody will.” Peters testified that def endant was putting away

a pocket knife at the time he made this statement to the victim on June 3, 2006. Further, Gail Jackson, the bartender at Slickers bar, testified that she saw defendant and Spires separate ly enter the ba r around 6:30 p.m. on December 5, 2006, and she noticed defenda nt speak loudly to Spires before Spires walked away from him. A

little late r, Spires approac hed the ba

r to orde r a drink , defend

ant then a lso approached the bar, and Jackson heard de fendant loudly say , “If y ou don’t want me, just tell me.”

After considering all of the evidence in the record in a light most favorable to the prosecution, we conclude that the jury could reasonably

find beyond a r

easonable doubt that defendant killed Spires on the evening of Dec ember 5, 2006. Accordingly, we hold that the evidence was sufficient to sustain the conviction in this case.

B. Forfeiture of I ssue - Supreme Court Rule 431(b) Defendant claims the trial court committed a per se reversible error that denied his right to a trial by an impartial jury because the trial court failed to strictly comply with Supreme Court Rule 431(b) (Official Reports Advance Sheet No. 8 (A pril 11, 2007), R. 431, eff. May 1, 2007).

1 At trial, defendant did not object to the sufficiency of the court’s inquiry of

each juror duringappeal. 16

voir dire . Similarly

, defens e counse l did not of fer que stions that

the cour t refuse d. Noneth eless, defendant claims that reversible error a rose when the trial judge failed to strictly comply with the mandates of Supreme Court Rule 431(b), as amended. Officia l Reports Advance Sheet No. 8 (April 11, 2007), R. 431, eff. May 1, 2007. The State claims de fendant

has forf eited the error by f

ailing to object du ring the process of voir dire and by failing to include it in a posttrial motion. Additionally, the State submits that plain error doe s not exist in

this c ase b eca

use the err

or did not de ny defe ndan t a fa ir tr ial. W e review de novo issues concerning the application of a supreme court rule. People v. Reed, 376 Ill. App. 3d 121, 125 (2007). The amen dment to Rul e 431(b)became effec tive on Ma

y 1, 2007, and

the jury trial in th is case be gan on O ctober 2 2, 2007. Pr ior to the a

mendment , the tria

l court wa s not requ

ired to individually question each juror unless r equested to do so by def

endant or defense counsel. Althoug h our supr

eme cour t electe d to place

the duty squarel y on the should

ers of th e court t

o comply with the di

rective containe d in the cu

rrent Supreme Cour

t Rule 431(

b), the a mended r ule does not alleviate either counsel for the State or counsel for the defense of an obligation to object when a trial judge inadvertently overlooks the applicability of Rule 431(b)

. There are significant and se rious potential consequences for a failure to bring issues arising under Rule 431(b) to the attention of the trial judge . The failure to object in the lower

court ma y r esult in wa

iver of the error

by t he defe nse unde r certa in circu mstance s. Equally serious, the State’s failure to object to the court’s inadequate voir dire procedures may result in a

revers al of a c onviction

on revie w when the

evidenc e below w as close ly b alance d. Thus, a ll parties and the judge must take care to insure the rule is followed.17 1. Per se Violation Defendant argues that fa

ilure to comply with the amended r ule constitutes a per se violation requiring a reversal. Recently , in People v. Glasper , 234 Ill. 2d 173 (2009), our supreme court he ld : “Defendants do not have a right to Rule 431(b)( 4) questioning under either the United States or the Illinois Constitution. A defendant's ‘rig ht’ to such questioning in Illinois courts is the product of this court's inherent powe r to make rules regulating the conduct of the c ircuit courts. See People v. Strain, 194 Ill. 2d at 475. Wh il e t he ru le is de si gn ed to he lp en su re th at de fe nd an ts ar e t ri ed be fo re a f ai r j ur y,

we cann ot say that Rule 4 31(b)(4 ) questio ning is in dispensa ble to a f air tria l. This point is inhe

rent in the

rule itse lf, which

origina lly r equired the quest ioning on ly if the defe ndant re quested i

t. It would be inc onsistent t o conclud e that the failure to question the venire in compliance with Rule 431(b)(4) ensures that biased jur ors will be imp aneled when a d efenda nt can choos e to fo rgo suc h ques tion ing, appare ntly without suc

h conce rns. * * * *** It would be inconsistent for this court to hold that a trial court' s failure to question a venire regarding a defendant's decision not to testify in violation of Rule 431(b)(4) requires automatic reversa l, when we have repeatedly held that

autom atic r eversa l is n ot req uired [even ] when a pros ecuto r ment ions a defen dant's post- Miranda silence and commits a Doyle violation. See People v. Dameron, 196 Ill. 2d 156, 164-66 (2001).” Glasper , 234 Ill. 2d at 196-98. The court recognized that there ar e many proc edures and methods to insure the18

fundamental right to a fair and impartial jury

. Glasper , 234 Ill. 2d at 201. The court unequivocally stated that the questioning require d under Ru le 431(b) involves a

process developed by supr

eme court rule to insure that an impartial jury is selected. Glasper , 234 Ill. 2d at 195. However, the Glasper court refused to declare a violation of Supreme Court Rule 431(b) , prior to the amendment, to constitute a n error requirin g automa tic reve rsal. I nstead, t he court in Glasper considered whether the error in that ca se was harmless in light of the overwhelming evidence of guilt. Glasper , 234 Ill. 2d at 202. Consequently, after

a careful analy

sis, the court concluded the error in Glasper to be harmless. Glasper , 234 I ll. 2d at 20 2-03. We r ecogn ize that our supreme court did not consider whether the amended version of the rule would have affected the outcome of Glasper. However , in light of the harmless error analy sis employed by

the supreme court in Glasper , we conclude that the application of either version of the rule would not affe ct the outcome of this appeal for the reasons discussed below. Significantly, in Glasper , defens e counse l requested the court to make certain inquiries as contempl ated by

the less st

ringen t, pre-a mended Ru

le 431(b) , but the c ourt ref used def ense counsel’ s the req

uest. With g

reat cla rity , our supr

eme cour t stated: “We reiterate that, under the rule applicable at the time, once a defendant makes the

request , the dec ision to que stion the v enire in accord ance wi th Rule 431(b) is not discretionary - it is a requirement.” Glasper , 234 Ill. 2d at 189. Hence, the oblig ation of the trial c ourt to co mply with the ma

ndates of pre-am ended Supreme Court Rule 431(b) in Glasper was a mandatory

obligation and no longer an optional consideration. Simi larly in t his ca se, th e court ’s obl igati on to addres s cert ain is sues d uring voir dire was19

equally mandator

y, d ue to the a

mendment

of the ru le and the clear d irective s of our su

preme court. In both Glaspe r and this case, the court’s inquiry was compulsory. This similarity in the compulsory obliga

tions of the court in both Glasper and this case, triggered by the circumstances applied t o the sepa rate ve rsions of Rule 431(

b) applic able in e ach cas e, rende rs the hol ding in Glasper applicable in this case due to the closely analogous circumstances. Consequently, we apply the holding in Glasper when eva

luating the mag nitude of the cour t’s unden iable er ror in this case. 2. Plain Error Clearly, defe

ndant forfeited strict compliance with the amended Rule 431(b) by allowing the court to complete voir dire without objection and, thereafter, failed to bring the Rule 431( b) error to the court’s attention in a posttrial motion. Since neither the State nor defense counsel objected to the procedures employ ed by the cour

t in this case, the viability of the jury ’s verdict will be de termined by a plain er ror ana lys is. Plain error applies to a forfeited error a ffecting the substantial rights of a def endant under two circ umstance s: (1) "w

here the evidenc e in a ca se is so clo sely balance d that the

jury's gui lty

ve rd ic t m ay have re sulted fr om the er ror and n ot the evi dence" ; and (2)"wher e the er ror is so serious th at the defendan t was denied a substant ial right, an d thus a fair t rial." People v. Herron, 215 Ill. 2d 167, 178-79 (2005); People v. Allen, 222 Ill. 2d 340, 350 (2006). The doctrine of plain error is not “‘a genera l saving clause preserving f or review all errors affec

ting substantial rights whether or not they have be en brought to the attention of the trial court.’” Herron, 215 I ll. 2d at 1 77, qu otin g People v. Precup, 73 Ill. 2d 7, 16 (1978). Further, our supreme court has determined that even constitutional errors can be for feited by a f

ailure to address the errors in the trial court. Allen, 222 Ill. 2d at 360.20 a. Plain Error – First Prong We begin by e

xamining the first prong considerations of the plain error a nalysis, which requires us to first decide whether the evidenc e was closely balanced in the case at bar. L ike the evidence in Glasper , the evidence in this case was overwhelming . In the instant case, two nonrelated, independent witnesses placed defe ndant at the scene of the crime, which involved a violent str

uggle with the vi ctim. One

ey ewitness

describ ed hear

ing scr eams on th e night i

n question and watching defendant, from a w indow across the street, pulling the victim down an outdoor stairway, then both f alling to the ground together, but ultimately out of the eyew

itness’s sight behind a vehicle. This was the precise loca tion where the victim was later discovered. Several minutes later, this witness observed defendant pick up a knife -like object from near the vehicle and throw it in the woods by the garbage ca

ns. A second witness testified that she observed defendant wa lk back and forth past her window, immediately acr oss the street from the scene of the crime, ar ound 7 or 8 p.m. while she was watching television. A third witness, the victim’s niece, testified that she ca lled defendant’s cell phone at approximately 7:22 p.m. on Dec ember 5, 2006, and spoke to both defendant and the victim on the evening the victim’s body was discovered. The victim’s 12-y ear-old daughter testified that, at approximately 10 p.m. on that evening , she arrived home and, when she reac hed the st eps of

the res idenc e, she found her mo ther o n the gr ound, and ran back t o the c ar scre aming, “Something is wrong with my mom.” When police arrived, they observed the victim’s body w here the ey

ewitness last saw defendant struggling with Spires. On De cember 14, 2006, police officers also rec overed a folding box cutter, containing some visible hairs and blood, in a wooded area behind the house. This discovery wa s consistent with the eyewitness’s a ccount describing where she saw defendant21

walking and then observed him discard something into the woods. Conseque ntly, we conclude the evidence in this case was overwhelming and not closely balanc ed. b. Plain Error - Second Prong Next, we must examine the second prong of the plain error analy sis by considering whether defendant has demonstrated the er ror “was so serious that it affected the fa irness of the defendant's trial and challeng ed the integrity of the judicial process.” Herron, 215 Ill. 2d at 187; Glasper , 234 Ill. 2d at 213. Again, our supre me court has provided instructive guidance by acknowl edging

that, although the

right to an impar tial jury is fundamental an

d constitu tionally guaranteed by

the sixth amendment, the court’s violation of rules in questioning the jurors does

not automa

tically require revers al, but re quires ba

lancing the unique

circumst ances of each ca se using the principles of harmless and/or plain error. Under both versions of Rule 431(b), there are four principles a judge must address during voir dire questioning to insure every juror understands and accepts the fundamental pr inciples delinea ted in the supreme court ru le. These principle s include: (1) the presumption of innocence; (2) the State’s burden of proof bey ond a reasonable doubt; (3) the fact that defe ndant need not present any

evidence; and (4) the principle that defenda nt’s failure to testify c annot be considered by the jury . In this case, the judge thoroughly discusse d these propositions with the jury during the sele ction pro cess. Con sequentl y, w e have c areful ly e

xamined the

record in this cas e to determine if the topics required under Rule 431(b) wer e addressed by

the court or counsel during the course of jury

selection. The record shows the judge specific ally covere d each of these principles in an intro ducto ry explan ation to th e enti re jur y panel by sta ting:

“The defendant is to be presume d innocen t of the charge i n the indictment,22 and this presumption remains throughout the trial with the defendant until y ou’ve been satisfied by the

evidence beyond a

reasonab le doubt as to the guilt of the defendant, and the burden of proving the guilt of the defendant bey ond a reasonable doubt is on the State. The law does not require the def endant to prove his innocence. The defendan t is not requ ired to pre sent any e

vidence or testify . If he chooses not to testify in this case, it cannot b e held aga inst him .” (Empha sis added). The judge also informed the entire jury panel that he would give written instructions to them at the close of the ca se and it would be the ir absolu te duty to acce pt the law as defined in thes e instructions and to follow the court’s instructions of law. Also during the individual questioning of the jurors, the judge we nt above and bey

ond the considerations outlined in Rule 431(b) by a sking each potential juror the following questions with minor variations from juror to juror: (1) whether the juror had any bias a

gainst a person simply because he

has been charged; (2) w

hether the juror

would follow the court’s instructions regarding the law; (3)

whether the juror would decide the case w ithout sympathy

and prejudice; (4) whether the juror would be able to give both the State and the defendant a fair trial; and (5) whether the juror would wait until the end of the entire case before forming a final opinion about the verdict. In the presence

of the entire jury

panel, the judge discussed the importance of wa iting until the end of the trial to form an opinion with the first impaneled juror subject to the voir dire inquiries . The cou

rt care fully

explained

to this juror: “The reason I

ask that is you will find out the State has a burden of proof. They alwa

ys have the bur

den of proof. They

will put on evidence. The defendant23 may put on evidence . If the defenda nt does put on evidence, there could be rebutta l evidenc e. I

t could g o back a

nd forth a little bit. What I’ m asking you to do is to withhold any opinion about the verdict until the case is complete ly over and you are

back deliberating with y

our fellow jurors, and y

ou indicated you would do that?” Additionally, the prosecution touched upon the burden of proof, which is a topic required for the judge to address by Rule 431(b). For example, the prosecutor asked some, but not all, of the potential jurors whether they would be able to sign a guilty verdict if they f

ound the State proved its case bey

ond a reasonable doubt and, likewise, whether they would be able to sign a not guilty verdict if they found the

State did not prove i

ts case b eyond a rea sonable d oubt. I t seems rational to conclude that, if the goal of the rule is to impanel an infor med and impartial jury, a ny deficiency

in the court’s inquiries should be subject to repair by the subsequent questioning by the attorneys following

the court’s initial inquiries. Defendant’s attorney did not ask any questions of the jurors relevant to Supreme Court Rule 431(b). Since each one of these Rule 431(b) principles was touc hed upon by either the

judge or the pr osecu tor du ring voir dire , we conclude that the judge’s failure to strictly

comply with this rule was not so serious that it “affected the fairne ss of the defendant's trial and challeng ed the integrity of

the judicial process.” Herron, 215 Ill. 2d at 187. Therefore , we conclude that the court’s error d id not ren der the d efenda nt's tria l per se fundamentally unfa ir. After considering the cumulative eff ect of the circumstances attendant to the selection of the jury in this case, we

conclude that the trial court’s undeniable error did not rise to the le vel required under the second prong of the plain error doctrine causing def endant’s trial to be fundamentally unfa

ir and warranting reversa

l of defendant’s conviction. For these rea sons, we24

affirm defendant’s conviction. CONCLUSIO N We find that

the Statepresented sufficient evidence to prove de fendant guilty beyond a

reasona ble doubt. Further, although the trial court erre d by failing to strictly follow the mand at es of Rule 431(b), that failure did not re nd er th e d ef

en da nt 's tr ia l f

un da me nt al ly u nf

ai r. Ac co rd in gl y, the judgment of the Peoria County circuit court is affirmed. Affirmed. O’BRIEN, P.J. and HOL

DRIDGE, J. concur.