## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . McCovins , 2011 IL App (1st) 081805- B

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. RAYVON Mc COVI

NS, Defe ndant-Appe llant.

District & N o. First District, F ourth Division Docke t No. 1-08-1805

Filed September 1, 2011

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) On appea l from defe ndant’s convictions fo r battery and ag g ravated battery with a firea

rm, defe ndant admitted that he fa i l ed t o proper ly
prese rve his contention that the trial court err ed during voir dire when it

mere ly made a broad statement about the principles set forth in Supreme Court Rule 431(b) and then asked if the prospec tive jurors could “abide by” those principles, but did not ask whether t hey understood and

acc epted eac h principle, and althoug h the trial court did err , the evidenc e

was not closely balanc ed and the err or did not constitute plain err or under the first prongof plain er

ror r eview.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 0 6 -C R -27316; the Hon. J ames M. Schre ier, Judge, pr esiding

.

J udg ment Affir med.Counsel on

Appea l Michae l J

. Pelletier, Patricia Unsinn, Alan D. Gol db erg, and David T. Har ris, all of State Appellate Def ender ’s Of

fi ce , of Chicag o, for appellant.

Anita M. Alvare z, State’s Attorney
, of Chicag o (James E. Fitz g era ld, Peg g y Ann Gill-Curtin, Alan J

. Spellberg, and Eve Reilly
, Assistant State’s Attorney s, of counse l), for the People.

Panel J USTI CE PUCI NSKI delivere d the judgme nt of the court, with opinion. *
J ustices Salone and Ster

ba conc urre d in the judgme nt and opinion. **

OP INION

¶ 1 Following a jury trial, d ef en d an t R ayv o n McCovins was convicted of one count of
ag g ravated battery with a fi re ar m an d one count of simple battery

. He was sentenc ed to

concur rent terms of 81⁄2 year s and 364 day s. On appea l, defe ndant contends his convictions should be reve rsed and his case rema nded for a new trial beca use the trial court violated I llinois Supreme Court Rule 43 1 (b ) (ef f. May 1, 2007), which require s the trial court to question prospec tive jurors about their understanding and acc eptanc e of the four principles

s et forth in the rule. The issue in the instant case is not whether a Rule 431(b) d i s cu s s i o n

occur red, but whe ther the inquiry satisfied Rule 431(b). ¶ 2 In an opinion filed on Marc h 4, 2010, this court found that the trial court’s methodology satisfied Rule 431(b) and upheld defe ndant’s conviction. People v. McCovins
, 399 I ll. App. 3d 323 (2010). There afte r, on Marc h 7, 2011, the I llinois Supreme Court issued a supervisory

o rder direc ting this court to vacate its judgme nt and rec onsider its prior ruling in light o f People v. Thompson
, 238 I ll. 2d 598 (2010). People v. McCov i n s , 239 I ll. 2d 574 (2011) (table)

. On Marc h 23, 2011, this c ourt g rante d defe ndant leave to f ile a supplemental brief. On re consideration, we ag ain af firm def endant’ s conviction.

Fol lowi ng J ust ic e Fro ssa rd’ s re ti re m ent , J ust ic e Puci nski del ivere d the j udgm ent of the *

cou rt , wit h opi nio n. J ust ic e Puci nski re viewed all re le vant m at er ia ls
, inc lud ing the cou rt ’s ori ginal opi nio n fi le d on Ma rc h 4, 2010
, and the sup ervisory or der is sue d by o ur sup re m e cou rt o n M ar ch 7, 20 11.

Pur sua nt to J ust ic e O’B r i e n ’ s re ti re m ent , J ust ic e Sal one has par ti ci pat ed in the

* *

re con si der at ion of thi s cas e. Pur sua nt to J ust ic e Gal la gher’ s re ti re m ent , J ust ic e S t e rba has
par ti ci pat ed in the re con si der at ion of thi s cas e. J ust ic e Sal one and J ust ic e Ste rba have bot h re viewed al l re le vant m at er ia ls
, inc lud ing the ori ginal opi nio n fi le d on Ma rc h 4, 2010
, and th e sup ervisory ord eris sue d by oursup re m e c ourt o n M ar ch 7 , 201 1.

-2-¶ 3 BA CKGROUND

¶ 4 Def

endant was char g ed with two counts of attempted first degree murder (720 I L CS 5/ 8- 4 (a)
, 9-1(a )(1) (West 2006)), two counts of ag g rava ted batt er y wi th a firea

rm (720 I L CS 5/12-4.2 (West 2006)), and three counts of ag g ravated battery (720 I L CS 5/12-4(b)( 8) (West 2006)) in connec tion to an October 31, 2006, sho o ting of J asmine Powell and Br y tnnie Smit h. The State nol-prossed the thr ee ag g rava ted battery counts and defe ndant elec ted to proce ed by

way of jury trial on the re maining c harg es. ¶ 5 At trial, J asmine Smith (Jasmi ne S.) testified that on October 31, 2006, at approximately 1 6 p.m. she was in a candy store located on the corne r of Homan Street and Huron Street with her friends J asmine Powell (Jasmi ne P.), Ki es h a J ohnson, Neisha J ohnson and “B obo,” a nine-year -old child. J asmine Br ox ton, defe ndant’s sister, was also in the store and threw an eg g at Keisha. In response , Neisha punched Br ox ton in the fac e. Neisha, Keisha, J asmine P., and Bobo then “jumped on” Br ox ton. The fig ht was broken up by sever al boy s who wer e at the sce ne, one of

whom, named “ Smack,” dr ove B roxt on awa y from the store

. ¶ 6 J asm i n e S

. an d her friends left the store and beg an walking down Christiana Street located near

by
, and Nicole Whit e, one of J asmine S.’s friends, joined them. Def endant lived on Christiana Street and Jasmine S. and her f riends enc ountere d him as they wer e wa lking down the street. When Whit e saw d ef en d an t , she swung a belt buckle at him. Bobo also struck defe ndant. In response , defe ndant ran acr oss the street and enter ed his residenc e. Def endant e x ited his house shortly there afte r, hol ding a

gun in his hands. When defenda nt

was approximately 20 fee t awa y from J asmine S. and her friends, he beg an shooting at them. J asmine S. r an awa

y from def

endant a nd hear d him f

ire approximately nine shots. Jasmine S. also heard J asmine P. and Br y tnnie Smit h (B ry

tnnie S.) cry out as they wer e running down the stree t. ¶ 7 J asmine S. indicated that at the time of the shooting, she lived approximately one block

awa y from def endant a nd had known de fenda

nt for appr ox imately

one year

. ¶ 8 J asmine P. confirme d that on Oct o b er 3 1
, 2006, she participated in a fig ht involving J asmine Br ox ton, de fenda nt’s sister. After

the fight, when Jasmine P. and her friends wer e

on Christiana Street, they wer e approa ched by defe ndant, who inquired about the alterc ation involving his young er sister. When J asmine P. “m ad e a s mart comment” in response to defe ndant’s inquiry , defe ndant re veale d that he had a gun in the waistband of his pa nts. At that time, a polic e ca r d rove throug h the neighborhood and defe ndant ran off. When defe ndant returne d to Christiana Street, Nicole Whit e confr onted him about pulling a gun on J asmine P. and tried to hit him with a belt. Def endant ra n off a second time. When he
returne d, defe ndant beg an chasing J asmine P. and her friends and shot a t the m. A s she was running awa

y , J asmine P

. felt som ething g o throug h her leg but she kept running until she

rea ched a n alley . After

defe ndant shot her in the leg , J asmine P. was take n to J ohn Stroge r Hospital to rec eive medical treatment. Her bone had been shat t er ed and she stayed in the

A number of the Sta te ’s fe m al e wit nes ses have the same fi rs t and/or la st name. For the sake 1 of cl ar it y, the se wit nes ses wil l be re fe rr ed to by the ir fi rs t name and the fi rs t le tt er of the ir la st name.

-3-hospital for appr ox imately six day s. ¶ 9 Br

y tnnie S. testified th at at ap p ro x i m at el y 6:40 p.m. on October 31, 2006, she wa s “hang ing around” with her friend L atoya Morg an on the 700 block of Christiana Street. She observe d J asmine S., J asmine P. and Nicole Whit e at that location. Def endant wa s outside

acr o s s t h e s t ree t from his house, but retre ated into his residenc e when some young boy s threw bottles at him. Def

endant then ran outside a

nd started shooting. Br

y tnnie S. sa

w that defe ndant’s arm was extended, but she did not reme mber seeing a gun in defe ndant’s hands. She hear d defe ndant fire approximately eight shots. Br y tnnie S. beg an running north toward

a near by alley when defe ndant beg an shooting. As she was running
, Br y tnnie S. felt a “har d pounding” on the rig ht side of her back. She almost fell, but was able to catc h herse lf. When Br y tnnie S. enter ed the alley
, she saw J asmine P. J asmine P. had fallen to the g round and said that she had been shot in the leg

. Police arr ived at the scene and Br y tnnie S. informed them that defe ndant had shot her. Br y tnnie S. was then taken to M ount Sinai hospital. That evening
, detec tives assembled a photo arr ay for Br y tnnie S. to view and she was able to identify defe ndant as the shooter. Br y tnnie S. had known defe ndant for approximately 10
year s prior to the shooting. ¶ 10 On November 3, 2006, Br y tnnie S. found a bullet in the lining of her coat. She called the police and they remove d the bullet. On November 6, 2006, Br y tnnie S. rec eived a phone call from defe ndant. During the co nversation, defe ndant asked her if she was okay and then indicated that he had not seen her in the crow d when he fired his wea pon. Def endant informed Br

y tnnie S. that he would not have fi re d h i s gun if he had known that she was prese nt. ¶ 11 Chicag o police office r Br ian Thomas testifie d th at on October 31, 2006, at appr ox imately 6:35 p.m., he and his partne r rec eived a dispatch over the radio about a shooting. In response , Offic er Thomas and his partne r drove to 745 North Christiana

. At t h at location, Offic er Smit h encounte red J asmine P. and Br y tnnie S. J asmine P. had been shot in the leg an d Br y t n n i e S. had a gunshot wound t o her back. Office r Thomas conver sed wit h the vi ctims befor e they wer e transporte d to hospitals to rec eive medical treat m ent. Br y tnnie S. and J asmine P. b oth identified defe ndant as the shooter. Offic er Thomas attempted to locate defe ndant that eve ning but he was not pre sent at his house. ¶ 12 Detec tive Roland Rios testified that he and his partne r, J o s e Ga rc ia, wer e assig ned to investigate the shooting of J asmine P. and Br y tnnie S. De t ective Rios conver sed with Br y tnnie S. in the emer g ency room at Mount Sinai hospital a nd she identified defe ndant as the shooter. After interviewing Br y tnni e S

. , De t ec tive Rios trave led to the scene of the shooting and attempted to int e r v iew p o s s ib le witnesses to the shooting, but was unsucce ssful. Detec tive Rios next interviewe d J asmine P

. at S trog er H ospital. J asmine P. also identified defe ndant as the man who shot her. Both Br y tnnie S. and J asmine P. used the name “Woods” to identify

defe ndant. Afte r conve rsingwith the victims, Detec tive Rios g ener ated a photo

arr ay , in which he included defe ndant’s picture. Br y tnnie S. viewed the photogr aphs and identified def

endant a s the man who shot her

. ¶ 13 Offic er Orlando Velasque z testified that on November 3, 2006, he and his partne r, L ester Wright, trave led to Br

y tnnie S.’s house located at 730 North Spaulding. When they arr ived

-4-at her residenc e, Bry tnnie S. handed Office r Velasquez a black lea t h er j ac ket and direc ted his attention to a hole in the top of her jacke t. Offic er Velasque z found a spent bullet in the lining of B ry

tnnie S.’s jacket. He subsequently rec overe d and inventorie d the bullet. ¶ 14 Chicag o police office r Br ian L ecla ir testified that o n N o v e mb e r 8
, 2006, at appr ox imately 6 a.m., he and his partne r trave led to 530 North Sawyer afte r rec ei ving information that defe ndant was at that location. After enter ing the building, Offic er L ecla ir went to the second floor and discovere d defe ndant hiding in a closet under a pile of clothing. Af t er order ing defe ndant out of the closet, Of fice r L ecla ir took defe ndant into c ustody

. Following Offic er L ecla ir’s testimony , the State re sted its case. ¶ 15 Misty Woods, defe ndant’s sister, testified for the defe nse. On October 31, 2006, she was living with her family in a residenc e located at 718 North Christiana. At approximately 5:30
p.m., Woods hear d the sound of g las s wi n d o ws cra cking

. Woods opened the front door, stepped out onto the porch and saw a crow d of 20 or 30 people outside. Woods then observe d J asmine P

. t hrow a bottle at the window. Other people in the crow d then started throwing bottles and rocks at Woods ’ house a nd she re treated inside the re sidence

. ¶ 16 L ater that evening
, another disturbance occur red outside of Woods’ residenc e. This time, Woods observe d approximately 40 to 50 people running north on Christiana Street. Woods’ sister, Passion, said that the crow d was chasing their brother and then ran upstairs to call the polic e. Woods was inside the residenc e waiting for the police to arr ive when she hear d
gunshots. Woods never saw her brother s t anding on the porch prior to hearing gunshots. Moreove r, she never actua lly saw her brother being chase d and did not know who fired the
gunshots. ¶ 17 Passion Br ox ton, another one of defe ndant’s three sisters, testified that on September 30, 200 6, she had an alterc ation with J asmine P. Some other g irls wer e prese nt and they also beca me involved in the fig ht. Police wer e called and Passion spoke to the office rs about the incident. Passion indicated t h at s h e told defe ndant about the fight with J asmine P. and acknow ledg ed that he “ wasn’t ha ppy” about the a ltercation. ¶ 18 T am ar a Du n ca n , d ef en d an t ’s gi rl fr iend, testified that on October 31, 2006
, at approximately 5:30 p.m. she and defe ndant left his residenc e located at 718 North Christiana and walked t o her residenc e located near by at 530 North Sawyer. When they arr ived at Dunca n’s house, she and defe ndant sat on the front porch for approximately 30 minutes until defe ndant left to return to his house, wher e he was meeting someone else. Def endant returne d
to Dunca n’s house approximat el y 1 0 or 15 minutes afte r he had left. He had a T-shirt

wr apped around his head and informed Dunca n that he had g otten hit in the head wi t h a bottle. D efe ndant’s head was bleeding and Dunca n clea ned the wound and put some g auze

on the injury

. Def

endant stayed at Dunca

n’s house the rest of the evening and did not leave until the following morning

. ¶ 19 Carla Dunca

n, Tamar a’s mother, confirme d that defe ndant was at h er h o u s e wi th her daughter at approximately 6:15 p.m. on October 31, 2006. Def endant had been hit in the head with a bottle and T am ar a wa s tending to defe ndant’s injury

. Carla went to bed at approximately 11:30 p.m. that e vening and defe ndant was still in her house at that time. At approximately 6 a.m. on November 8, 2006, police arr ived at Carla’ s home. Police informed

-5-her that there was a fire on th e fi rs t fl o o r of the residenc e. The office rs then enter ed the

apar tment and arr ested defe ndant. Police coer ced Carla into signing a complaint for criminal trespass ag ainst defe ndant b ec au s e they told her she would be arr ested for harbor ing a fug itive if she di d not comply

. Carla indicated t hat defendant alway s had permission to be at her house. ¶ 20 Tommy Walker, defe ndan t ’s co u s i n , t est ified that he spoke to Br y tnnie S., his ex

g irlfriend with whom he had a child, about the shooting. Walker had just visited defe ndant in jail and was upset. Walker asked Br y tnnie S. if she was sure that defe ndant was the person who s hot h er an d Bry

t n nie S

. admitted that she was not cer tain. Walker asked Br

y tnnie S. why she bl am ed d efe ndant for the s hooting if she was not cer tain that he was the offender and she said that the shots had come from the direc tion of defe ndant’s residenc e and that people in the c rowd ha d said defe ndant was the shooter. Walker a cknowledg ed that he did not want def

endant to be in trouble and that he w as a c onvicted fe lon. ¶ 21 The p ar t i es th en p ro ceeded by way of stipulation. The parties first stipulated that if Detec tive Carney was called to testify
, h e wo u l d state that he interviewe d J asmine S. on November 8
, 2 0 0 6

. S h e informed him that J asmine Br ox ton had been hit with an eg g

. J asmine S. also indicated that she had neve r see n a gun that evening

. ¶ 22 The parties further stipulated that if Amy Martar ono, a dispatcher at the Chicag o police depar tment’s 911 ce n t er , wer e called to testify
, she would state that a call was rec eived at 6 : 2 8 p

. m

. o n October 31, 2006, reg arding a man that had been stabbed at the corne r o f Homan and Huron Streets. The caller also stated that there wer e approximately 100 kids on the stree t at the 700 block of N orth Christiana Street. The caller repor ted that the mob w as throwing bottles and there was a fema le participa nt who had a kn ife. Martarono would further testify that at 6:19 p.m. a call was rec eived from 657 North Christiana and the caller said that there wer e hundreds of kids fig hting on the street with sticks, bricks and g olf clubs. The kids wer e brea

king house and car windows. Another 911 call was rec eived at 6:20 p.m. from the 700 block of North Christiana about kids fig hting and throwing bricks in the street. A call place d at 6 : 3 3 p

. m. from 614 North Christiana indicated that there wer e 13 people fighting on the street with bats, knive s, and bottles. Finally
, a call place d at 6:37 p.m. from

a ce ll phone somewher e in the 700 block of North Christiana indicated that shots ha d been fired. ¶ 23 Next, the parties stipul at ed t h at De t ec t i v e Ge ra l d S wi n k l e would testify that he interviewe d Carla Dunca

n on November 9, 2006. Dunca n admitted that she was unsure when defe ndant was at her residenc e on October 31, 2006, but indicated that her daughter informed her that defe ndant ar

rived at approxim ately

5:30 p.m. ¶ 24 Following the stipulations, the parties delivere d closing argu m en t s

. T h e jury returne d with a verdict, finding defe ndant guilty of a ggra v ated battery with a firear m of J asmine P

. and Br y tnnie S. and not guilty of the first degree murder charg es. Upon posttrial motion, the
court found insuffi ci ent evidenc e of injury or bodily harm to Br y tnnie S. and enter ed a conviction for the lesser included offe nse of simp l e b at t ery

. The trial court sentenc ed defe ndant to 81⁄2 year s in t h e I l l i nois Depa rtment of Correc tions for ag g ravated battery of J asmine P. concur

rent with 364 day s for the battery of Br y tnnie S. This appea l followed.

-6-Def endant does not challeng e the sufficie ncy of the evidenc e; rathe r, the only issue defe ndant raises on a

ppeal is whe ther the tria l court violated Rule 431(b)

.

¶ 25 ANALYSI S ¶ 26 In his sup p l em en t al b ri ef, defe ndant, rely ing on Thompson
, argues that the trial court

err ed wh en it provided a broad statement of applicable leg al principles including the four Rule 431(b) principles during the voir dire proce ss and failed to inquire i n t o t h e potential jurors’ acc eptanc e and understanding of eac h of the principles. The trial court mere ly asked whether the voir dire members could “abide by” the leg al principles it had listed and did not

asce rtain whether the potential jurors understood and acc epted eac h of the four Rule 431(b) principles. Def

endant acknow ledg es that he failed to proper ly prese rve this issue on appea l, but he urge s this court to revie w t his matter for p l ai n er ro r. Def endant acknowledg es t hat, pursuant to Thompson
, a trial court’s failure to comply with Rule 431(b) does not require

reve rsal under

the sec ond prongof plain er ror r eview a

bsent a showingof ac tual jury bias; howeve r, he argues that the trial court’s err or war rants reve rsal in this case b ec au s e the evidenc e ag ainst him was closely balanc ed and constituted plain err or under the first prong of plain er

ror r eview. ¶ 27 To properly prese rve an issue for appea l, a defe ndant must object to the purported e rror at trial and specify the err or in a posttrial motion. People v. Enoch
, 122 I ll. 2d 1 7 6
, 186 (1988); People v. Bannister
, 232 I ll. 2d 52, 65 (2008). A defe ndant’s failure to abide by both require ments results in forf eiture of appellate revie w of his claim. Enoch
, 122 I ll. 2d at 186; People v. Piatkowski
, 225 I ll. 2d 551, 564 (2007). Her e, it is undisputed that defe ndant failed
to object to the trial court’s purported Rule 431(b) violations at trial or in a posttrial motion, and ac cording ly , we f

ind that forfe iture applies. ¶ 28 The plain err or doctrine, howeve r, provides a limit ed exception to the forf eiture rule. I ll. S. Ct. R. 615(a) ; Bannister
, 232 I l l

. 2 d at 65. It permits revie w of otherwise improperly
prese rved issues on appea l if the evidenc e is closely balanc ed or the err or is of such a serious
magnitude that it aff

ecte d the integ rity of the judicial proce ss and deprive d the defe ndant of his rig ht to a fair trial. I ll. S. Ct. R. 615(a) ; Bannister
, 232 I ll. 2d at 65. The first step in any such analy sis is to deter

mine whether any err or actua lly occur red. People v. W

alker
, 232 I ll. 2d 113, 124-25 (2009). I f an err or is discovere d, the defe nd ant then bear s the burden of
persua sion to show that the err or prejudice d him under either prong

. People v. McLaurin
, 235 I ll. 2d 478, 495 (2009). ¶ 29 Defendant’s claim of err or conce rns the trial court’s compliance with a supreme c ourt rule, which is subject to de novo revie w. People v. S u a r ez , 2 2 4 I ll. 2d 37, 41-42 (2007); People v. Hayne

s , 399 I ll. App. 3d 903 (2010). To deter mine whether

an er ror oc curr ed in this case, we examine amended Rule 431(b) as well as our supreme c ourt’s re cent opinion interpre ting the r

ule ( People v . Thompson , 238 I ll. 2d 598 (2010)). Rule 431(b) provides: “The court shall ask eac h potential juror, individually or in a g roup, whether that juror understands an d accepts the following principles: (1) that the defe ndant is presumed innocent of the charg e(s) ag ainst him or her; (2) that befor e a defe ndant can be convicted t he S tate mus t prove the defe ndant guilty beyond a reasonable doubt;

-7-(3) that the defe ndant is not require d to offe r any evidenc e on his or her own behalf ; and (4) that the defe ndant’s failure to testi fy ca nnot be held ag ainst him or her; howeve r, no inquiry of a prospec tive juror shall be made into the defe ndant’s failure to testify when the de fenda

nt objects. The court’s method of inquiry shall provide eac h juror an opportunity to respond
to the specific questions conce rning the principles set out in this section.” (Emphasis added.) I ll. S. C t. R. 431(b) (ef f. May 1, 2007). ¶ 30 Her e, the trial court commence d the voir dire proce ss by making pref atory comments to the entire venire
, informing them of the rele vant leg al principles that g overne d defe ndant’s trial, including the four Zehr principles contained in Rule 431(b)

. S p ec i fi cally
, the court stated:
“THE COU RT: Now, J urors, I want to g o over some basic fundame ntal principles of Americ an constitutional and criminal law that will guide and direc t and control our trial. I rea d to you the counts from the in d i ct ment. The indictment is a

mere formal document which is nece ssary to pl ac e t h e d efe ndant on trial. The indictment does not constitute any proof of guilt. It does not constitute any infere nce of guilt. Aga in, it’s a mere formal doc ument which is nec essar y to beg in this t rial.
I n d ee d
, jurors, t he defenda nt is presumed to be innocent of the charg es aga in s t him in the indictment. This presumption of innocenc e is fundame ntal to our sy stem. Every defe ndant charg ed with a crime in this co u n t ry is presumed to be innocent there of. The presumption of innocenc e rests with the defe ndant now. It rema ins with him throughout e very stag e of the trial and even at the close of the case during your deliberations. Presumption of innocenc e is not ov er come unless and until the time arie s when you are convince d beyond a rea sonable doubt that he is guilty

. That is the burden in this case , jurors, proof beyond a re as o nable doubt. The burden of proof rests with the State. It ne ver shifts to a defe ndant. A def endant may

never be ca lled upon to prove innoce nce. * * * The defe nse then may or may not choose to prese nt a case

. Ag ain, the defe nse has

no burden. I f the defe nse decide s to prese nt a case , they may do so in the same form and fashion that the State did. I f the defe ndant chooses to testify
, then his testimony
must be judge d in the same manner as any other witness. I f the defe ndant chooses not to te stify
, that in no way may be considere d ag ainst him. The defe nse will r est their

case .” ¶ 31 The trial c ourt furthe r explained as follows:

“THE COU RT: The J udg e is the j udg e of the law a nd the jury

must acce pt and apply the law as g iven to them by the J udg e whether they like it or not, whether it fits into some prec onceive d opinion, but by their oaths the jury must acc ept and apply the law g iven to the m by the Judg e. The way the case is de cided is f or the jury to a

pply the law to the f

acts a nd in that way

they decide the ca se. * * *

-8-I s there a ny juror who hone stly , sincere ly fee ls that the y cannot a bide by any or

some or all of the princ iples Ijust talked about? Any juror who disput es i t and feel that they cannot follow these constitutional principles? I f so, please stand and tell me your name . L et the re cord show a neg ative re sponse.” ¶ 32 After t h e co u rt made these preliminary comments and inquiries, the voir dire proce ss

commence d. The prospec tive jurors wer e questioned individually by the trial court an d defe nse counsel about their backgrounds but wer e no t questioned ag ain about any controlling leg al principles. Acc ording ly
, the rec ord es t ab l i shes that the trial court admonished the potential juro rs ab o u t ea ch of the four Rule 431(b) principles and that the principles wer e discussed during the trial court’s pref atory comments to the venire along wi t h b as ic
courtroom proce dure and scheduling

. After concluding these pref atory comments, the court then made a single inquiry
, asking whether there was any juror who could not “abide by” or who “dispute[d] ” “a

ny or some or a ll of the principles.” ¶ 33 Although defe ndant takes issue with the trial court’s phrase ology and argues that the trial court’s inquiry did not trac k the prec ise languag e in the rule, revie wing courts have observe d that Rule 431(b) “does not dict at e a particula r methodology for establishing the venire ’s understandingor ac cepta

nce of those principles” and have found that trial c ourts have me t the require ments of the rule when they have utiliz ed terminolog y that deviated slightly from the prec ise languag e contained in the rule. See, e.g., People v. Digby
, 405 I ll. App. 3d 544, 548 (2010) ( tri al court’s questioning complied with Rule 431(b) when i t inquired whether jurors “ ‘had a problem’ “ or “ ‘disagree d’ ” with the principles); People v. Ingram
, 401 I ll. App. 3d 382, 393 (2010) (trial court comp l i ed wi t h Rule 431(b) when it admonished the potent ial jurors of the four Zehr principles and inquired whether they had any “ ‘difficulty

or quarr el’ ” with the principles). Her e, we do not find that the trial court’s p h ra s eo logy constituted err or. More problematic, how ever , is that the trial court essentially “collapse d” the four Rule 431(b) principles a nd included them into one question. ¶ 34 In our orig inal dispositi on, we fo un d th at th e t ri al court’s inquiry was sufficie nt and observe d that the plain languag e of Rule 431(b) did not require the trial court to question the jurors about eac h individual principle. On rec onsideration, in light of Thompson
, we find that the trial cour

t’s inquiry

did not satisfy

the re quirements of Rule 431(b). ¶ 35 In Thompson
, our supreme court found that the languag e of amende d Rule 431(b) to be “cle ar a nd unambiguous.” Thompson , 238 I ll. 2d at 607. The cour t expl ained: “The rule states th at the trial court ‘shall ask’ potential jurors whether they understand and acc ept the enumer ated principles. Whil e the prospec tive jurors may be questioned individually or in a g roup, the method of inquiry must ‘ provide e ach juror with an opportunity to respond to specific questions co n ce rn i n g the [Rule 431(b)] principles.’ The committee comments emphasize that trial courts may not simply give ‘a broad statement of the applicable law follow ed by a general question

conce rning the juror’s wil lingness to foll ow the law .’ [Ci tation.] Rule 431(b), there fore
, mandates a specific question and response proce ss. T he trial court must ask each potential juror whether he or she understands and acce pts

eac h of the principles in the rule. The questioni ng may be perf ormed either

-9-individually or i n a group, but the rule requires an opportunity for a response from

eac h prospec tiv e j uror on his or her understanding and acc eptanc e of those principles.” ( Emphasis added.) Thompson , 238 I ll. 2d at 607. ¶ 36 Her e, we find that the trial court failed to abide by the mandatory question and response proce ss require d by Rule 431(b). In contravention of Rule 431(b), t h e t ri al court mere ly provided the prospec tive jurors with a broad statement of leg al principles intersper sed with

com m en t ary on courtroom proce dure and the trial schedule
, and then conclude d with a g ener al qu es t i o n about the potential jurors’ willingness to follow the law. Our supreme court’s ruling in Thompson makes it clea r that the court’s inquiry wa s insufficient to

asce rtain whether the potential jurors understood and acc epted eac h of the four Rule 431(b) principles. ¶ 37 Indeed, in People v. Lampley
, 405 I ll. App. 3d 1 (2010), this court rec ently found that the trial court err ed when it informed jurors of the four Rule 431(b) principles and then eng ag ed in questioning that collapsed the principles. Specifica lly
, the court inquired about the first three principles as follows: “ ‘the defe ndant is presumed innocent and does not have to offe r any evidenc e on his own behalf but must be proven guilty beyond a rea sonable doubt by the State. Does a

nyone her e have any problems with those concepts? I f so, please sta nd up? ’ ” Lampley
, 405 I ll. App. 3d at 3. The court then inquired about the final principle, asking : “ ‘As I have also previously stated, the defe ndant does not have to testify on his own behalf

. I f the defe ndant does not testify
, you must not hold that decision ag ainst the defe ndant. I f the defe ndant decides not to testify , is there a nyone her e who be lieves that, reg ardle ss of what I have just said, you would hold that decision ag ainst the defe ndant? I f so, please stand up.’ ” Id

. Ultimately
, we found that the court’s inquiry was insufficient pursuant to Thompson
, explaining: “the trial court should ha ve followed a straightforwa rd questioning of

the Zehr principles as outlined by Rule 431(b) and, as a result, committed e rror .” Id

. at 10-11. Her e, as in Lampley
, the t rial court admonished t he venire about the four Zehr principles, but its inquiry was even more defic ient as it did not specific ally ref er to the four principles when it inquired whether the potential jurors could ab i d e b y all of the leg al principles it had discussed in its prefatory comments. Acc ording ly
, we find that the trial court e rre d. We do not, however , find that the er ror wa rra nts rever sal of def

endant’ s conviction. ¶ 38 In Thompson
, the court conclude d that a Rule 431(b) err or wa s n o t a structura l error

war ranting automatic reve rsal of a defe ndant’s conviction; rathe r, such an err or is subject to plain err or re view. Thompson , 238 I ll. 2d at 608-15. Upon applying pla in error revie w, the
court conclude d that a Rule 431(b) violation does not require reve rsal under the substantial rights prong of the plain err or doctrine absent a showing of actua l jury bias. Thompson
, 238 I ll. 2d at 608-15. In light of Thompson
, defe ndant, in his supplemental brief, does not prese nt any evidenc e of actual bias or argue that his conviction s hould be reverse d pursuant to the second prong of plain err or revie w. Instead, defe ndant argues that the evidenc e ag ainst him

was closely balanc ed and that the trial court’s err or constituted plain err or under the first
prong of plain err or revie w. Def endant emphasizes that he prese nted two alibi witnesses and impeache d the State’s witnesses with prior comments made to police and civilians that they did not see the shooter. Moreove r, defe ndant argues that “the scene of the offen s e wa s a street- wide bra

wl in the dark of

night, hamperingclea

r identification.”

-10-¶ 39 We disa g ree that the evidenc e ag ainst defe ndant was c losely balanc ed. B ry

tnnie S. a nd J asmine P. both identified defe ndant as the shooter. Although defe ndant emphasizes that it

was dark and the street was chaotic at the time of the shooting, defe ndant was not a strang er to either g irl. Both g irls testified that they knew defe ndant from the neighborhood and knew the home wher e he and his family resided. The g irls immediately named defe ndant as the
perpe trator when they wer e interviewe d by police office rs. In addition to the testimony from the vict i m s, the State also prese nted testimony from J asmine S., an eyewitness to the shooting who identified defe ndant as the shooter. Although defe ndant emphasiz es that he
prese nted alibi testimony
, we observe that his alibi witnesses included his g irlfriend, Tamar a Dunca n, and his g irlfriend’ s mother, Carla Dunca n, both of whom share d a close rela tionship with defe ndant. See People v. Mullen
, 313 I ll. App. 3d 718, 729 (2000) (“the trier of fac t is
not require d to acc ept alibi testimony over positive identification of an acc used, particula rly wher e the alibi testimony is provided b y biased witnesses”)

. Moreove r, althoug h Carla Dunca n testified that defe ndant was at her residenc e at the time of the shooting, she admitted to Detec tive Swinkle that she was unsure when de fenda nt arrive d at her

residenc e and that her daughter informed her that defe ndant arrived at approximately 5:30 p.m. and stayed with them the rest of the night. Ba sed on the fac ts prese nted at tri al
, we d o n o t fi nd that the evidenc e wa s so c losely balanc ed that the trial court’s e rror in questioning the juror s about their understanding and acc eptanc e of Rule 431(b) constituted plain err o r u n d er the first
prongof plain er

ror r eview.

¶ 40 CONCLUSI ON ¶ 41 For

the af oreme ntioned rea sons, we af firm the judg ment of the trial c ourt.

¶ 42 Affir

med.

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