Quick take on Thursday's Illinois Supreme Court opinions
Our panel of leading appellate attorneys review Thursday's Illinois Supreme Court opinions in the criminal cases People v. Wilmington, People v. Jackson and People v. Grant.
By Jay Wiegman, Office of the State Appellate Defender
In jury selection for a criminal trial, Supreme Court Rule 431(b) requires that potential jurors be asked if they understand and accept the presumption of innocence, the requirement of proof of guilt beyond a reasonable doubt, the fact that an accused is not required to offer any evidence, and the fact that any failure to testify may not be held against him. In People v. Wilmington, 2013 IL 112938, the Illinois Supreme Court considered whether defendant was denied a fair trial because the trial court did not fully comply with the voir dire requirements set forth in Supreme Court Rule 431(b). The Supreme Court also considered whether defendant was denied a fair trial because the circuit court did not ascertain whether defendant consented to his attorney's tendering of an instruction on second degree murder.
In Wilmington, near the beginning of voir dire, the trial judge informed the prospective jurors that Wilmington was presumed innocent, that the State bore the burden of proving him guilty beyond a reasonable doubt, that he need not present evidence or testify, and that they could not hold it against him if he chose not to testify. The judge did not, at that time, ask the jurors whether they understood and accepted these principles, though the judge later asked the jurors in groups whether anyone “disagree [d] with” the presumption of innocence, the State’s burden of proof, and Wilmington’s right not to present evidence. No jurors expressed disagreement with these three principles.
At trial, defendant did not testify, but a statement he made to an assistant state's attorney was admitted at trial. In it, defendant stated that he had been engaged in a sexual relationship with the male victim, that they had argued at the defendant’s residence, and that defendant had shot the victim in the head before dragging the body outside and stuffing it in a garbage can. When police searched the defendant’s residence with his consent, they found that it had been cleaned and redecorated, no inculpatory evidence was found, and no fingerprints suitable for comparison were obtained. At trial, the defense offered testimony as to defendant’s mild retardation. There was also conflicting testimony as to whether he suffered from seizures. However, there was forensic testimony that the condition of the body was consistent with having been dropped on the sidewalk and then dragged on it.
The trial judge instructed the jury as to second degree murder. The trial judge did not question Wilmington to determine if he agreed with the tendered instruction and understood its consequences. Defense counsel argued in closing that the State had failed to prove that Wilmington murdered the deceased, but also argued that if the jury concluded that Wilmington was the perpetrator of the murder, he should be found guilty only of second degree murder. After sending several notes to the judge during its deliberations, the jury found Wilmington guilty of first degree murder and concealment of a homicidal death. The judge sentenced Wilmington to consecutive prison terms of 50 years for first degree murder and five years for concealment of a homicidal death.
The First District Appellate Court rejected defendant's claim on appeal that the trial court had not determined whether he agreed with the giving of the jury instruction on second degree murder, but remanded for a new trial because of the trial court's failure to fully comply with Rule 431(b). Following a supervisory order directing the appellate court to vacate its judgment and reconsider in light of People v. Thompson, 238 Ill.2d 598 (2010), in which case the omission of Rule 431(b) questions had been found to not qualify as structural error, the appellate panel on remand determined that the trial court's 431(b) omissions did not warrant reversal under the closely-balanced prong of plain error analysis, either. However, the appellate panel on remand held, in a departure from the first panel's position, that the trial court erred when it failed to inquire as to whether defendant consented to the second degree murder instruction, though it ultimately determined that this was not plain error.
The Supreme Court today affirmed, though it did not accept the appellate court's reasoning entirely. Wilmington, 2013 IL 112938, ¶1. Writing for the majority, Justice Karmeier stated: "[w]hile it may be arguable that the [trial] court’s asking for disagreement, and getting none, is equivalent to juror acceptance of the principles, the trial court’s failure to ask jurors if they understood the four Rule 431(b) principles is error in and of itself." Wilmington, 2013 IL 112938, ¶32. Further, the Supreme Curt noted that the trial court did not even inquire regarding the jury’s understanding and acceptance of the principle that defendant’s failure to testify could not be held against him. Wilmington, 2013 IL 112938, ¶32. This constituted error. However, under the facts of the case, the Court found that the evidence was not closely balanced, and thus reversible error did not occur. Wilmington, 2013 IL 112938, ¶34.
The Supreme Court also rejected defendant's argument that the trial court had not ascertained whether defendant personally agreed to the submission to the jury of an instruction on second degree murder. Affirming that a defendant has the right to decide whether to submit an instruction on a lesser-included offense, the Supreme Court pointed out that second
degree murder is not a lesser-included offense of first degree murder, but is more accurately described as a lesser-mitigated offense of it, by which an accused does not expose himself to potential criminal liability which he might otherwise avoid.
Justice Burke, joined by Justice Freeman, dissented, as they had in Thompson. Justices Burke and Freeman consider the questions required by Rule 431(b) to be vital to the selection of a fair and impartial jury, and therefore consider the trial court's failure to ask them to necessarily amount to plain error.
By Kerry J. Bryson, Office of the State Appellate Defender
Aaron Jackson had his license suspended in 1997. In 2006 he applied for a
new license, using a slightly different name (omitting his middle initial)
but his valid social security number. In applying, he answered negatively
as to whether his license had ever been suspended. In 2011, he was charged
with the Class 4 felony of driving while license suspended.
The circuit court declared the DWLS statute unconstitutional as applied to
Jackson. The Supreme Court first held that the circuit court had erred in
reaching the constitutional issue because the case could be resolved on
non-constitutional grounds. The real question concerned proof of the
elements of DWLS and whether Jackson could defend against that charge with
evidence that he possessed a valid license.
The Court affirmed the elements of DWLS as: (1) driving a motor vehicle on
the highways of this State, and (2) the fact of the revocation of the
driver’s license or privilege. Only the second element was at issue here.
As to that element, a defendant may present evidence that he possessed a
validly obtained license. The State may rebut that defense by showing that
the license was not restored in compliance with Section 6-208(b) of the
Illinois Vehicle Code in that the defendant either purposefully misled the
authorities to prevent discovery of a prior suspension or revocation, or
that he provided erroneous information on his application, even without
intending to mislead, if the erroneous information led to improper issuance
of his license. The Court affirmed prior case law holding that a defendant
will not be criminally responsible, however, where an “unintentional error
is made in an application, especially where it does not mislead the
Secretary of State.”
In concluding, the Court noted the parties’ agreement that the DWLS statute
has been construed as creating an absolute liability offense, so there is
no affirmative defense to DWLS (insanity, necessity, etc.) where the
defendant does not contest that his license was suspended or revoked.
Given that the Court did not address the statute on constitutional grounds,
this decision does not really break new ground. The Court noted the
elements of DWLS, acknowledged that this defendant could present evidence
that he had a validly obtained license, and confirmed that the State could
counter that defense with evidence that defendant misled the Secretary of
State in obtaining his license.
By Kerry J. Bryson, Office of the State Appellate Defender
A Chicago police officer observed Ronnie Grant standing at an area known as
“the weed spot” in front of a CHA building, yelling, “dro, dro” to a
passing vehicle. The officer was familiar with terms used in the sales of
narcotics, and he testified “dro, dro” is a term used in the sale of
Grant was arrested for the ordinance violation of soliciting unlawful
business, and later was charged with felony offenses of possession of
cannabis and cocaine with intent to deliver. The Chicago ordinance
prohibits standing on the public way and soliciting unlawful business,
which includes the sale of narcotics and which may be accomplished by the
use of words, gestures, or symbols.
The Court affirmed the finding that there was probable cause to arrest
defendant for the ordinance violation, and thus upheld the defendant’s
possession conviction, relying on the officer’s testimony about the meaning
of “dro, dro,” and Grant’s presence in a high-crime area. The police were
not required to “wait and see” what happened simply because other
traditional indicia of drug activity (transactions, furtive movements,
objects in defendant’s hands, flight when the police approached) were
This decision, like Jackson, does not alter the traditional probable cause
analysis. The Court took a straightforward approach of looking at the
offense for which defendant initially was arrest and whether the facts
known to the officers at the time would lead a reasonable cautious person
to believe that Grant had committed that offense. For solicitation of
unlawful business, it was enough that Grant was observed yelling
narcotics-sales slang at a passing vehicle in a high-crime area.