People v. Birge

2021 IL 125644

182 N.E.3d 608

450 Ill.Dec. 796

The PEOPLE of the State of Illinois, Appellee,

v.Brian BIRGE, Appellant.

Docket No. 125644

Supreme Court of Illinois.

Opinion filed February 19, 2021.

Rehearing denied May 24, 2021

James E. Chadd, State Appellate Defender, Catherine K. Hart, Deputy Defender, and Edward J. Wittrig, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Springfield, for appellant.

Kwame Raoul, Attorney General, of Springfield (Jane Elinor Notz, Solicitor General, and Michael M. Glick and Richard J. Cook, Assistant Attorneys General, of Chicago, of counsel), for the People.

OPINION

JUSTICE MICHAEL J. BURKE delivered the judgment of the court, with opinion.

¶ 1 Following a jury trial, defendant Brian Birge was convicted of burglary ( 720 ILCS 5/19-1(a), (b) (West 2014)) and arson (id. § 20-1(a)(1), (c)), both Class 2 felonies carrying mandatory class X sentencing based on defendant's criminal history ( 730 ILCS 5/5-4.5-95(b) (West 2014)). The Livingston County circuit court sentenced defendant to 24 years and 6 months’ imprisonment on each count, to be served concurrently, and further ordered defendant to pay the victim $117,230 in restitution. Defendant appealed, arguing, inter alia , that (1) the trial court failed to properly admonish the jurors in accordance with Illinois Supreme Court Rule 431(b) (eff. July 1, 2012), (2) contrary to the statutory requirement, the restitution order lacked a sufficient evidentiary basis for the amount imposed ( 730 ILCS 5/5-5-6(f) (West 2014)), and (3) defense counsel was ineffective in failing to object to the restitution order. The appellate court affirmed defendant's convictions and rejected his restitution argument. 2019 IL App (4th) 170341-U, 2019 WL 6277956.

¶ 2 We allowed defendant's petition for leave to appeal. Ill. S. Ct. R. 315(a) (eff. Oct. 1, 2019). For the following reasons, we hold that the jurors were correctly admonished pursuant to Rule 431(b). The restitution order, however, was erroneously entered due to the lack of a sufficient evidentiary basis, which thereby affected the integrity of the judicial process and the fairness of the restitution portion of the sentencing proceeding. Accordingly, we affirm the portion of the appellate court's judgment that affirmed defendant's convictions. But we vacate the restitution portion of the circuit court's sentencing order and remand for a new hearing on that matter.

¶ 3 BACKGROUND

¶ 4 In February 2017, the case against defendant proceeded to a jury trial on the charges of burglary and arson. During voir dire , the trial court separated the venire into two groups of 16 each. It admonished the first group regarding the principles enumerated in Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) as follows:

"THE COURT: This is a criminal case as I mentioned. The defendant is presumed innocent. There are a number of propositions of law that you must be willing to follow if you are going to serve as a juror in this case. So I am going to recite those for you now. Please listen carefully as I will be asking if you understand these principles of law and if you accept these principles of law.

A person accused of a crime is presumed to be innocent of the charge against him. The fact that a charge has been made is not to be considered as any evidence or presumption of guilt against the Defendant.

The presumption of innocence stays with the Defendant throughout the trial and is not overcome unless from all of the evidence you believe the State proved the Defendant's guilt beyond a reasonable doubt.

The State has the burden of proving the Defendant's guilt beyond a reasonable doubt. The defendant does not have to prove his innocence. The Defendant does not have to present any evidence on his own behalf and does not have to testify if he does not wish to. If the Defendant does not testify, that fact must not be considered by you in any way in arriving at your verdict.

So by a show of hands, do each of you understand these principles of law?

PROSPECTIVE JURORS: (All hands raised.)

THE COURT: Okay. And do each of you accept these principles of law?

PROSPECTIVE JURORS: (All hands raised.)"

¶ 5 Defense counsel also questioned these same prospective jurors, asking whether they understood that defendant is presumed innocent and that the State had to prove defendant guilty beyond a reasonable doubt. All potential jurors raised their hands, indicating that they understood those principles. Nine jurors were selected from this first group.

¶ 6 The court then brought in a second group of 16 prospective jurors and admonished them in the same manner as it did the first group. It again asked, "By a show of hands, do each of you understand these principles of law?" All 16 of these venire members raised their hands. The court next asked, "Do each of you accept these principles of law?" All 16 venire members raised their hands again. When defense counsel questioned these prospective jurors, he too asked if they understood that defendant is presumed innocent and that the State must prove defendant guilty beyond a reasonable doubt. All 16 raised their hands to indicate that they understood those principles. From this group, three jurors and one alternate were selected. And the case proceeded to trial.

¶ 7 Pontiac police sergeant Brad Baird testified at trial that he was on routine patrol on May 28, 2016, around 1:30 a.m., when he was flagged down by Willie Williams, who reported that a nearby store known as Chief City Vapor was on fire. Sergeant Baird went to the location and noticed that smoke and flames were coming from the building, the door was ajar, and broken glass lay scattered on the floor of the entryway. Nobody was in the building at the time. A trail of merchandise outside the store led to the southeast of the building, where there where several boxes with hundreds of items.

¶ 8 Officer Jonathan Marion testified that he was on duty at the time in question when he responded to a report from Sergeant Baird of a structure on fire at Chief City Vapor. Officer Marion arrived at the scene and saw heavy smoke and flames showing from inside the building. Officer Marion testified that Sergeant Baird, another officer, and the person who had flagged down Baird on the street were already at the scene when Marion arrived. The only other person in the vicinity was defendant, who was one block south of Chief City Vapor. Officer Marion approached defendant and noticed that he appeared nervous and was sweating profusely. Blood was dripping from his hand. Defendant told Marion that he cut his hand while working on a lawn mower. Marion testified that defendant was wearing shorts, a coat, and a hoodie. Glass shards and plastic tags were stuck to his clothing and legs. Defendant consented to a search of his person. Officer Marion recovered two pairs of pliers, a large amount of change, a set of keys, a lighter, and $115 in cash. Three of the keys recovered from defendant were for opening the locks for storage units on the property of Chief City Vapor.

¶ 9 Detective Michael Henson testified that he investigated the Chief City Vapor burglary after the fire was extinguished. Several stacks of clear plastic tags that read "sealed for your protection" were strewn about, both inside and outside the store. The tags were just like the ones that Officer Marion had recovered from defendant's person. Henson also received keys recovered from defendant and learned that they opened an exterior garage and storage unit connected to Chief City Vapor. Finally, Henson testified that the store's video surveillance system was badly damaged in the fire and that he was therefore unable to obtain any video of the crime. He decided against making further efforts to obtain surveillance video of the incident because the recovery attempt would be both costly and unlikely to be successful.

¶ 10 Tom Roe testified he owned the business known as Chief City Vapor but that his father owned the building that the business was located in. Roe did not give anyone permission to enter the building after the store closed on the night of the fire. Roe kept some change and approximately $100 in cash in the store's cash register. The keys discovered on defendant's person unlocked the outbuildings on the property and were always kept in Roe's desk, located inside the building. The trail of items found outside the building were the property of his business. That included the clear plastic tags (which were stored on shelves and used to seal bottles of vaping liquid). When asked about the damage the fire caused, Roe testified that he "had to gut the entire building down to pulling studs, pulling insulation, furnace." He further stated that "everything was lost," including the merchandise and furniture.

¶ 11 Shane Arndt, an arson investigator, testified that the Chief City Vapor fire was caused by someone introducing an open flame to the couch inside the store. He ruled out any accidental ignition source, such as faulty wiring or a furnace. The only potential source he could not rule out was the possibility that the disposable lighter recovered from defendant had been used to set the fire. He also testified that the glass door to the business was broken prior to the fire because the shattered glass on the floor did not have any smoke damage.

¶ 12 Defendant testified that he had overdosed on drugs approximately 12 hours prior to the fire and had been hospitalized. After discharge, defendant's mother dropped him off at "Aly Anne's" gambling parlor, which was located close to where Officer Marion later questioned defendant. Defendant testified that he did not remember many of the details from the relevant time because he was heavily medicated, drinking, and using drugs. He remembered leaving the gambling parlor and walking to his sister's house. Defendant knocked on the door, but his sister did not answer, so he decided to return to Aly Anne's to continue gambling. On his...