People v. Davis

405 Ill.App.3d 585

940 N.E.2d 712

346 Ill.Dec. 343

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

v.Robbin DAVIS, Defendant–Appellant.

No. 1–08–2895.

Appellate Court of Illinois, First District, Fourth Division.

Nov. 12, 2010.

Anita Alvarez, State's Attorney, Alan Spellberg, Samuel Shim, ASA's of counsel, Chicago, IL, Attorneys for Plaintiff/Appellee People.Michael Pelletier, State Appellate Defender, Patricia Unsinn, Deputy Defender, Lindsey J. Anderson, Assistant Appellate Defender, Chicago, IL, Attorneys for Defendant/Appellant Robbin Davis.Justice LAVIN delivered the opinion of the court:

[346 Ill.Dec. 347 , 405 Ill.App.3d 587] Here, we consider the case of defendant Robbin Davis, who was found guilty of violating the armed habitual criminal statute after a jury trial and sentenced to 7 1/2 years in prison. On appeal, defendant asserts that (1) the trial court failed to 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 armed habitual criminal statute (720 ILCS 5/24–1.7 (West 2006)) is unconstitutional; (3) trial counsel was ineffective; (4) the trial court erroneously did not permit the court reporter to record all proceedings; and (5) defendant's sentence was improperly based on a miscalculation or vindictiveness by the trial court. For reasons that will be elucidated at some length below, we affirm in all respects.

At trial, Officer Lonnell Williams testified that early in the morning hours of June 8, 2007, he, Officer Daniel Pruszewski and Officer John Cherep were in an unmarked police car when they observed a sport utility vehicle (SUV) speed through a stop sign. The officers followed the SUV and activated their lights and sirens. Although the driver of the SUV appeared as if he was slowing down to pull over, he kept driving instead. The officers were about 100 feet behind the SUV when it eventually pulled over on a well-lit street. Officer Williams observed defendant holding a large gun as he exited the passenger door of the SUV and ran into the bushes. When the officers reached that location, Officer Williams exited his car and ordered defendant to get out of the bushes. After defendant crawled out, Officer Williams handcuffed and detained him. Because the SUV had driven away, Officers Pruszewski and Cherep got back in their car and pursued the SUV. When the officers returned between 30 and 60 seconds later, Officer Williams searched in the bushes and recovered the gun he had seen in defendant's hands. The gun was loaded with 31 rounds of ammunition. Officer Williams testified that William Archer, the driver of the SUV, was eventually apprehended by a different officer and that a third individual, named Duryea Wright,

[346 Ill.Dec. 348 , 940 N.E.2d 717]

was also arrested. Officer Pruszewski substantially corroborated Officer Williams' testimony, differing as to who actually ordered defendant to come out of the bushes. Officer Patrick Kinney also testified regarding the subsequent arrest of Archer and Wright.

Wright testified that on the night in question, he was with defendant and Archer in a Chevy Blazer when they drove through a stop sign. At some point, all three men exited the car and fled from the police. Wright did not specifically remember when defendant exited the car but did recall that defendant was not armed that evening.

The parties stipulated that in 2004, defendant was convicted of the felony offense of aggravated unlawful use of a weapon and that in 2003, defendant was convicted of the felony offense of manufacture or delivery of a controlled substance under the name Johnnie Davis. The jury found defendant guilty of being an armed habitual criminal and the trial judge sentenced him to 7 1/2 years in prison.

First, defendant asserts the trial court failed to properly question the prospective jurors regarding whether they understood and accepted certain principles, as required by Supreme Court Rule 431(b). Defendant does not dispute that he failed to object to this alleged error. Nonetheless, he asserts that a Rule 431(b) violation requires automatic reversal or that reversal is required under the plain error doctrine.

Rule 431(b) is a codification of our supreme court's decision in People v. Zehr, 103 Ill.2d 472, 83 Ill.Dec. 128, 469 N.E.2d 1062 (1984), which held that the trial court erred by refusing the defendant's request to ask the venire about four fundamental principles of law. Zehr, 103 Ill.2d at 476–78, 83 Ill.Dec. 128, 469 N.E.2d 1062. The four Zehr principles are that (1) the defendant is presumed innocent; (2) the defendant must be proved guilty beyond a reasonable doubt; (3) the defendant is not required to produce any evidence; and (4) the defendant's failure to testify cannot be held against him. Zehr, 103 Ill.2d at 477, 83 Ill.Dec. 128, 469 N.E.2d 1062. Pursuant to Rule 431(b), the trial court must address the Zehr principles, even in the absence of a specific request by the defendant and “ shall ask each potential juror, individually or in a group, whether that juror understands and accepts” those principles. Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007. In addition, “[t]he court's method of inquiry shall provide each juror an opportunity to respond to specific questions concerning the principles set out in this section.” Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007.

At first blush, it is questionable at best that any error occurred here. As to the first two Zehr principles, the trial court admonished the venire that “[a] criminal trial starts with the person accused of a crime at the beginning of the proceedings presumed to be incident [ sic ],” and made additional comments which were substantially similar. Those comments indicated to the venire that the presumption of innocence exists from the beginning of the trial. Nothing in the court's subsequent statements would lead the venire to believe that any later event would remove that presumption. The court also stated that “[t]he only way someone can be guilty of a crime is if the government who brought the charges against the accused is able to prove the accused guilty beyond a reasonable doubt,” and stated that “[t]he government has the burden of proof.” In addition, after each one of those two principles was relayed to the jury, the court asked whether anyone

[346 Ill.Dec. 349 , 940 N.E.2d 718]

had “ a problem” with the respective principle and no hands were raised. This question was specifically directed at each of those respective principles and was broad enough to invite any juror who either did not understand or did not accept the referred-to principle to indicate as such. Cf. People v. Graham, 393 Ill.App.3d 268, 273–74, 332 Ill.Dec. 504, 913 N.E.2d 99 (2009) (error was found where the first panel of jurors was not questioned regarding the State's burden to prove the defendant guilty beyond a reasonable doubt and the second panel was not asked any questions regarding the presumption of innocence). No juror indicated a lack of understanding or acceptance after either question.

As to the remaining two principles, the court informed the venire as follows:

“An accused does not have to testify. They don't have to call any witnesses on their own behalf. They don't have to prove a thing. * * * With that said, is there anybody here who would hold it against the accused if they did not testify or didn't call any witnesses on their own behalf? Does anybody think the accused has some responsibility to testify or prove their innocent [ sic ], or anything like that, if you have feelings like that, please raise your hand.”

No hands were raised. Although defendant asserts that it was improper for the court to combine the remaining two Zehr principles, this court has found the opposite to be true. People v. McCovins, 399 Ill.App.3d 323, 327, 340 Ill.Dec. 487, 928 N.E.2d 486 (2010) (rejecting the defendant's assertion that the trial court was required to question the jurors about each individual principle). In addition, the court's questions were sufficiently broad so that if any juror had responded to either question in the affirmative, it would have shown that he or she failed to understand or accept either that the defendant's decision to refrain from testifying could not be held against him or that he had no obligation to produce evidence. See People v. Raymond, 404 Ill.App.3d 1028, 1056, 344 Ill.Dec. 862, 938 N.E.2d 131 (2010) (there is no magic language which must be used to determine whether the potential jurors understand and accept the four Zehr principles). A trial court complies with Rule 431(b) when it admonishes the venire regarding the four Zehr principles and gives the venire an opportunity to disagree with them. McCovins, 399 Ill.App.3d at 328, 340 Ill.Dec. 487, 928 N.E.2d 486. We find the court did so here. Even assuming the trial court erred, our supreme court recently held that a violation of Rule 431(b) does not constitute a structural error requiring automatic reversal and declined to adopt a bright-line rule of reversal for every violation. People v. Thompson, 238 Ill.2d 598, 610–11, 616, 345 Ill.Dec. 560, 939 N.E.2d 403 (2010). Accordingly, we consider whether any error here rises to plain error.

Under the plain error doctrine, we will review unpreserved error when either (1) the evidence is closely balanced, regardless of the seriousness of the error; or (2) the error is serious, regardless of the closeness of the evidence. People v. Herron, 215 Ill.2d 167, 186–87, 294 Ill.Dec. 55, 830 N.E.2d 467 (2005). The first step of plain error analysis is deciding whether any error has occurred. Thompson, 238 Ill.2d at 613, 345 Ill.Dec. 560, 939 N.E.2d 403. As stated, defendant has not shown any clear error under these facts. Assuming error did occur, defendant, for obvious reasons, does not suggest that the evidence...