People v. Blankenship

406 Ill.App.3d 578

943 N.E.2d 1111

348 Ill.Dec. 201

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Carl E. BLANKENSHIP, Defendant–Appellant.

No. 2–08–1012.

Appellate Court of Illinois, Second District.

Nov. 15, 2010.

Gary R. Peterson, Deputy Defender, Michael Delcomyn (Court–appointed), Office of the State Appellate Defender, Springfield, for Carl E. Blankenship.Joseph P. Bruscato, Winnebago County State's Attorney, Rockford, Lawrence M. Bauer, Deputy Director, State's Attorneys Appellate Prosecutor, Elgin, Stephanie Hoit Lee, Algonquin, for People.Justice O'MALLEY delivered the opinion of the court:

[348 Ill.Dec. 203 , 406 Ill.App.3d 580] Defendant, Carl E. Blankenship, appeals his conviction of possession of a controlled substance (720 ILCS 570/402 (West 2008)). He argues that (1) the trial court's instructions and questions to prospective jurors did not comply with Supreme Court Rule 431(b) (Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007); (2) the State failed to prove a chain of custody for the substance he was charged with possessing; and (3) the court lacked an evidentiary basis for imposing a $10 “street-value” fine. We affirm.

I. Rule 431(b)

Supreme Court Rule 431(b) states:

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“The court shall ask each potential juror, individually or in a group, whether that juror understands and accepts the following principles: (1) that the defendant is presumed innocent of the charge(s) against him or her; (2) that before a defendant can be convicted the State must prove the defendant guilty beyond a reasonable doubt; (3) that the defendant is not required to offer any evidence on his or her own behalf; and (4) that the defendant's failure to testify cannot be held against him or her; however, no inquiry of a prospective juror shall be made into the defendant's failure to testify when the defendant objects.

The court's method of inquiry shall provide each juror an opportunity to respond to specific questions concerning the principles set out in this section.” (Emphasis added.) Official Reports Advance Sheet No. 8 (April 11, 2007) R. 431(b), eff. May 1, 2007.

In what follows, we often refer to the four principles as the “ Zehr principles,” after People v. Zehr, 103 Ill.2d 472, 83 Ill.Dec. 128, 469 N.E.2d 1062 (1984), the inspiration for Rule 431(b).

Defendant concedes that he raised no Rule 431(b) issue in the court below. See People v. Barrow, 133 Ill.2d 226, 260, 139 Ill.Dec. 728, 549 N.E.2d 240 (1989) (“in general both an objection at trial and a written post-trial motion raising the issue are required to preserve that issue for review”). Defendant asks us to review the Rule 431(b) issue under the plain-error rule, which “bypasses normal forfeiture principles and allows a reviewing court to consider unpreserved error” when “the evidence in a case is so closely balanced that the jury's guilty verdict may have resulted from the error and not the evidence” or when “the error is so serious that the defendant was denied a substantial right, and thus a fair trial.” People v. Herron, 215 Ill.2d 167, 178–79, 186–87, 294 Ill.Dec. 55, 830 N.E.2d 467 (2005); see also 134 Ill.2d R. 615(a). Without error, of course, there is no “plain” error, so we first determine whether there was error at all in the trial court's application of Rule 431(b). See People v. Hudson, 228 Ill.2d 181, 191, 319 Ill.Dec. 840, 886 N.E.2d 964 (2008).

We find no error. Here the trial court gave the same admonitions and put the same questions to each prospective juror. The trial court informed each juror of all four Zehr principles and asked whether the juror “agree[d] with” the principles. Each juror answered yes. Defendant argues that the trial court failed to comply with Rule 431(b) in that it did not separately ask whether the jurors understood the Zehr principles. Defendant points to the conjunctive in Rule 431(b): the trial court is directed to ask each “potential juror * * * whether that juror understands and accepts” the Zehr principles (emphasis added) (Official Reports Advance Sheet No.8 (April 11, 2007), R. 431(b), (eff. May 1, 2007)).

This court recently applied Rule 431(b) in a similar factual scenario. In People v. Calabrese, 398 Ill.App.3d 98, 338 Ill.Dec. 146, 924 N.E.2d 6 (2010), the defendant invoked the plain-error rule to preserve a Rule 431(b) challenge. The trial court in Calabrese informed the jurors as a body of all four Zehr principles, and, as each juror was selected for the venire panels, asked the juror individually whether he or she “ ‘accept[ed]’ ” the principles the court had previously described. Calabrese, 398 Ill.App.3d at 100, 338 Ill.Dec. 146, 924 N.E.2d 6. Each juror answered “ ‘yes.’ ” Calabrese, 398 Ill.App.3d at 100, 338 Ill.Dec. 146, 924 N.E.2d 6.

We found no error in the court's administration of Rule 431(b):

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“Here, the trial court asked each juror whether he or she accepted the principles that the court had described, and each juror had the opportunity to ask questions or state that he or she did not understand or accept the principles. Each juror, however, responded that he or she did understand and accept the principles.” (Emphasis added.) Calabrese, 398 Ill.App.3d at 121, 338 Ill.Dec. 146, 924 N.E.2d 6.

The facts in Calabrese make no mention of any juror literally stating that he or she “understood” the Zehr principles. The jurors were, literally, asked only whether they “accept[ed]” the principles, and each responded “ ‘yes.’ ” Nonetheless, we found that each juror “responded that he or she did understand and accept the principles” (emphasis added) ( Calabrese, 398 Ill.App.3d at 121, 338 Ill.Dec. 146, 924 N.E.2d 6). Tacit here was the premise that a rational juror (which we presume any juror to be (see People v. Wharton, 334 Ill.App.3d 1066, 1080, 268 Ill.Dec. 732, 779 N.E.2d 346 (2002))) would not claim to accept the Zehr principles unless that juror believed he or she understood them. This premise was itself based on the notion that acceptance implies understanding, at least so far as Rule 431(b) is concerned. We expressly hold today what we implied in Calabrese.

We explain how our holding accords with the text of Rule 431(b). The canons of statutory interpretation apply to supreme court rules as well. Robidoux v. Oliphant, 201 Ill.2d 324, 332, 266 Ill.Dec. 915, 775 N.E.2d 987 (2002). “As is the case with statutes, our primary task in construing a rule is to ascertain and give effect to the intent of its drafters.” Robidoux, 201 Ill.2d at 332, 266 Ill.Dec. 915, 775 N.E.2d 987. The most reliable indicator of intent is the language used, which should be given its plain and ordinary ( Robidoux, 201 Ill.2d at 332, 266 Ill.Dec. 915, 775 N.E.2d 987), or “popularly understood” ( Gem Electronics of Monmouth, Inc. v. Department of Revenue, 183 Ill.2d 470, 478, 234 Ill.Dec. 189, 702 N.E.2d 529 (1998)), meaning, unless this would defeat the intent of the drafters ( People v. Scharlau, 141 Ill.2d 180, 193, 152 Ill.Dec. 401, 565 N.E.2d 1319 (1990)).

In Rule 431(b), “accepts” and “understands” are linked by “and.” “And” is generally interpreted as conjunctive rather than disjunctive. Byung Moo Soh v. Target Marketing Systems, Inc., 353 Ill.App.3d 126, 131, 288 Ill.Dec. 455, 817 N.E.2d 1105 (2004). “ ‘As a general rule, the use of the conjunctive * * * indicates that the legislature intended for all of the listed requirements to be met.’ ” (Emphasis in original.) Byung Moo Soh, 353 Ill.App.3d at 131, 288 Ill.Dec. 455, 817 N.E.2d 1105, quoting Gilchrist v. Human Rights Comm'n, 312 Ill.App.3d 597, 602, 245 Ill.Dec. 484, 728 N.E.2d 566 (2000). Rule 431(b), however, prescribes no particular wording by which the trial court is to confirm that a juror “understands and accepts” the Zehr principles. We believe that, in common usage, to “understand” a proposition is to comprehend it, while to “accept” that proposition is both to comprehend it and to assent to it. “Acceptance” implies “understanding,” but “understanding” does not imply “acceptance.” We see nothing in Rule 431(b) to indicate that we should not apply this popular usage.

That “understanding” does not imply “acceptance” was the basis of our decision in People v. Blair, 395 Ill.App.3d 465, 473–74, 334 Ill.Dec. 446, 917 N.E.2d 43 (2009), where the trial court, with respect to certain of the Zehr principles, asked the jurors if they “understood” the principles without also asking them if they accepted the principles. We found that these efforts

[348 Ill.Dec. 206 , 943 N.E.2d 1116]

did not satisfy Rule 431(b). Blair, 395 Ill.App.3d at 476–77, 334 Ill.Dec. 446, 917 N.E.2d 43. Similarly, in People v. Thompson, 238 Ill.2d 598, 607–08, 345 Ill.Dec. 560, 566–67, 939 N.E.2d 403, 409–10 (2010), our supreme court held that it was error for the trial court to ask the jurors whether they understood a certain Zehr principle without also asking whether they accepted it.

Here, by contrast, the trial court asked each juror if he or she “agreed[d] with” all four Zehr principles. These words were sufficient to confirm whether the jurors (in the language of Rule 431(b)) “accept[ed]” the Zehr principles. See People v. Willis, 402 Ill.App.3d 47, 51–52, 343 Ill.Dec. 163, 934 N.E.2d 487 (2010) (jurors asked if they would “ ‘follow’ ” the law as stated in the Zehr principles); People v. Schaefer, 398 Ill.App.3d 963, 967, 338 Ill.Dec. 650, 924 N.E.2d 1176 (2010) (jurors asked if they had “ ‘any problem’ ” with the Zehr principles). The words also sufficed to confirm whether the jurors comprehended, or (in the words of the rule) understood the Zehr principles.¹

Even if we were to find error, we would not find that it rose to the level of plain error. Defendant does not argue that the evidence was closely balanced. Rather, he contends that the error was so serious that it deprived him of his substantial right to a fair and impartial jury. Defendant...