Opinion
No. 1-15-0410
08-24-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES ANDERSON, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County. No. 14 CR 15821 Honorable James B. Linn, Judge Presiding. JUSTICE HOWSE delivered the judgment of the court.
Presiding Justice Ellis and Justice McBride concurred in the judgment. ORDER ¶ 1 Held: Defendant's conviction for Armed Habitual Criminal is affirmed; the trial court did not commit error when it made comments to potential jurors during voir dire who admitted potential bias and did not commit plain error in failing to comply with Illinois Supreme Court Rule 431(b) by failing to ensure jurors understood the principles stated therein; the admission of other-crimes evidence was proper as part of the continuing narrative of events that led to the offense at issue; and the Armed Habitual Criminal statute is constitutional. ¶ 2 Following a trial by jury defendant, Charles Anderson, was found guilty of unlawful use or possession of a weapon by a felon and armed habitual criminal (AHC). The circuit court of Cook County entered judgment on the conviction for AHC and sentenced defendant to 12 years' imprisonment. Defendant appeals, arguing the trial court committed plain error by failing to ensure the selection of an impartial jury through improper remarks during jury selection and by failing to comply with Illinois Supreme Court Rule 431(b), he was denied a fair trial by the erroneous admission of other crimes evidence without a proper limiting instruction, and the AHC statute is facially unconstitutional. ¶ 3 For the following reasons, we affirm.
¶ 4 BACKGROUND
¶ 5 Defendant has raised an issue with regard to jury selection. During jury selection the following pertinent exchanges occurred between the trial court and the potential jurors:
"THE COURT: Is there anybody here who has a disagreement or a problem with that proposition that when a criminal trial starts, the accused is presumed to be innocent? If you have a disagreement or problem with that, please raise your hand.
No hands are raised.
* * *
How is it that someone goes from the status of a citizen accused of a crime to someone who may be guilty of a crime? How can that happen? There's only one way someone can be guilty of a crime and it's the only way anyone could ever be guilty of a crime at any period of time in the history of our country and in any jurisdiction you can think of, and the only way you can be guilty of a crime is if the government who brought the charge against the accused can prove the accused guilty beyond a reasonable doubt.
***. The government has the burden of proof. They have to prove the accused guilty beyond a reasonable doubt. We don't guess somebody guilty or make a hunch about it or think about it, the only way somebody can be guilty is if the government who brought the charges against the accused can prove their case beyond a reasonable doubt.
Is there anybody who has a disagreement or problem with that, that the only way someone can be guilty is that the government who has the burden of proof can prove guilt beyond a reasonable doubt? If you have a disagreement or problem with that, please raise your hand.
No hands are raised.
The last proposition I'll discuss with you is this: In a criminal trial the accused does not have to prove their innocence. An accused does not have to testify, they don't have to call any witnesses on their own behalf. In a criminal trial the burden of proof is on the government. They have to prove guilt beyond a reasonable doubt, and an accused does not have to prove anything at all. Hypothetically speaking, there may be a criminal trial. The government may have 100 witnesses that they call against the accused. The accused, which is their perfect right, chooses not to testify, which is also their perfect right, chooses not to call any witnesses on their own behalf. After hearing from 100 people on one side and no people on the other, there can be a reasonable doubt in the jury's mind as to whether the government has met their burden of proof.
With that said, is there anybody here who disagrees with that proposition? Anybody who would hold it against the accused if they did not testify, which is their perfect right under the law, or did not call any witnesses on their own behalf,
which is also their perfect right? Does anybody feel, well, I heard the government's evidence, you better give me your side of the story? Would anybody hold it against the accused if they did not testify, again, which is their right? If they did not call witnesses, which is also their right? If you have a problem with that or disagreement with that, please raise your hand.¶ 6 The trial court informed the jury of the charges against defendant, identified the potential witnesses, and provided additional admonishments to the jury. Subsequently the court addressed the potential jurors as follows:
No hands are raised."
"THE COURT: With that said, before you hear any evidence at all, is there anybody here that thinks just because of the nature of the charges somebody is accused of having a gun, that they're prejudiced, you cannot give the government a fair trial or you're prejudiced and you cannot give Mr. Anderson a fair trial just because of the nature of the charges before you even hear what the evidence is? Anybody feel as though they're prejudice and cannot give one side or the other a fair trial for that reason, raise your hand."One potential juror raised his hand. The court asked the potential juror for his name and the potential juror responded. The court then stated: "[Potential juror] has his mind made up before he hears the evidence." The court then asked for and received the names of three more potential jurors who raised their hands. The court asked the last, "You're prejudice [sic] too?" to which the potential juror responded affirmatively. Following an off-the-record sidebar the court continued to address the jury. The court informed the potential jurors that police officers would be witnesses in the case. The court then said, in pertinent part:
"THE COURT: And when you're listening to a witness, it's perfectly okay to take into account what their occupation is, what they do for a living. And when it comes to police officers, that may very well explain why they're in certain places doing certain things because that's part of their job. But the law doesn't say that because of your job, whether it's a police officer or a teacher or a carpenter or a clerk or an unemployed person, the law doesn't say that your job status makes you automatically more credible or less credible than anybody else. That's up to the jury to decide. With that said, just because somebody works for the police, before you even hear what they have to say or hear what the other witnesses have to say, is there anybody here who thinks they're automatically more credible or automatically less credible than other witnesses just because they work for the police before you even hear what they say?The court then asked for and received the names of the potential jurors who raised their hands. Jury selection proceeded and a jury was selected. None of the potential jurors who indicated a prejudice were on defendant's jury. ¶ 7 At the trial Melnee Rice testified she lived three doors down from defendant with her father, William Hargress, her mother, and her 22-year-old son Carlton. On August 25, 2014, Rice awoke to find her son upset about an argument with someone from the neighborhood. Rice went to his room where she heard him yell for someone to get away from his mother's car. Rice's car was parked in the alley behind their house along with her father's car. Rice looked outside and initially did not see anyone but looked a second time to see defendant standing behind her car. Rice testified she saw defendant throw five brick walkway pavers at the rear window of her car shattering the glass. Defendant ran away and Rice called police. While she was on the phone with police Rice saw defendant drive a tow truck into the rear of her car and her father's car. Police came and took a report. Rice testified that later that same day, Rice's father, Hargress, left the house for work but returned a short time later. Rice testified Hargress was angry. ¶ 8 Hargress testified he was working when he was called to return home. When Hargress got home he learned that someone broke the glass in Rice's car and drove into the back of her car and his car. Rice told Hargress that defendant had damaged the cars. Later, when Hargress was driving down the alley to go to work, he saw defendant sitting in the garage at defendant's residence. Hargress saw defendant's motorcycle and another man in the garage. Hargress asked defendant why he had damaged his and his daughter's cars. Defendant told Hargress it was because Carlton was dating defendant's girlfriend. Defendant threatened to kill Carlton if Carlton came down the alley. Hargress responded "Hey, you can't do that, man, not to my grandchild. *** You got to go through me first." Hargress testified defendant responded by retrieving a handgun from the seat compartment of a motorcycle and threatening Hargress with the gun. Defendant threatened to kill Hargress and his entire family. The other man in the garage stepped between them and told Hargress he should leave. Hargress returned home and spoke to Rice. Police arrived a short time later. ¶ 9 Officer Carreno of the Chicago Police Department testified he and his two partners, Officers Garcia and Lau, responded to a call of a person with a gun. When they arrived at the address Officer Garcia got out of the car and went to the front of the house while Officers Carreno and Lau drove to the alley in the back of the house. Officer Carreno testified that as he drove down the alley he saw defendant sitting in a garage within arm's length of a motorcycle. Defendant looked in Officer Carreno's direction then walked out of the garage and started walking away. Officer Carreno testified this made him suspicious. Officer Carreno and Lau approached defendant to have a conversation with him. A short time later Officer Garcia approached and told Officer Carreno "That's him." Officer Carreno took defendant into custody and told Officer Garcia the defendant looked nervous and walked away from the motorcycle in the garage. Officer Carreno saw Officer Garcia retrieve a handgun from the top of the motorcycle. Officer Carreno searched defendant and recovered an ammunition round of the same type that was in the handgun Officer Garcia recovered. The officers placed defendant in their police vehicle and drove to the front of the location. Hargress identified the gun police recovered as the same gun defendant pointed at him. ¶ 10 Officer Garcia testified that when he arrived at the scene, he went to the residence and spoke to Rice and Hargress while Officers Carreno and Lau drove around to the alley. After speaking with Rice, Officer Garcia went to the alley and started toward defendant's address. Officer Garcia saw defendant walk out of the garage and saw Officers Carreno and Lau approach and speak to defendant. After defendant was detained Officer Garcia went into the garage and recovered a gun that was sitting on the seat of the motorcycle. Officer Garcia testified that Rice and Hargress identified defendant and Hargress identified the gun that defendant pointed at him. ¶ 11 The parties stipulated to defendant's qualifying prior felony convictions. The jury found defendant guilty of unlawful use or possession of a weapon by a felon and AHC. The trial court merged the two counts and sentenced defendant to 12 years' imprisonment for AHC. ¶ 12 This appeal followed.
Unbelievable. What's your name that you got your mind made up about the credibility of police before you even hear what they have to say?"
¶ 13 ANALYSIS
¶ 14 On appeal defendant argues he was denied his right to a fair trial because (i) the trial court failed to comply with Illinois Supreme Court Rule 431(b); (ii) the trial court shamed jurors against providing honest answers during voir dire; (iii) the trial court erroneously admitted other- crimes evidence without a limiting instruction; and (iv) the AHC statute is facially unconstitutional.
¶ 15 I. Illinois Supreme Court Rule 431(b)
¶ 16 Defendant argues the trial court failed to ensure the selection of an impartial jury by failing to comply with Illinois Supreme Court Rule 431(b) (eff. July 1, 2012). Rule 431(b) "requires the trial court to ask prospective jurors if they understand and accept that (1) a defendant is presumed innocent; (2) the State must prove the defendant guilty beyond a reasonable doubt before he can be convicted; (3) the defendant is not required to offer any evidence in his own behalf; and (4) if a defendant does not testify on his own behalf, it cannot be held against him." People v. Brown, 2017 IL App (1st) 142197, ¶ 33. "The trial court's questioning of the venire concerning these four principles, which are commonly referred to as the Zehr principles, is intended to ensure compliance with People v. Zehr, 103 Ill. 2d 472, 477 (1984), which sought to end the practice where the judge made a broad statement of the applicable law followed by a general question concerning the juror's willingness to follow the law. [Citation.]" Id. The rule "requires the trial court to ask potential jurors whether they understand and accept the four Zehr principles." (Emphases added.) People v. Sebby, 2017 IL 119445, ¶ 49. It is not sufficient to ask potential jurors "if they had any disagreement or quarrel with the principles." People v. Belknap, 2014 IL 117094, ¶ 46. Asking potential jurors whether they disagree with the Rule 431(b) principles may be tantamount to asking them whether they accept the principles, but the court must also ask whether the jurors understand the principles. Id. "[T]he trial court's failure to ask jurors if they understood the four Rule 431(b) principles is error in and of itself." People v. Wilmington, 2013 IL 112938, ¶ 32. Asking potential jurors whether they "had any problems with" the principles but not asking potential jurors whether they understand the four Zehr principles is "clear error." Sebby, 2017 IL 119445 ¶ 49. ¶ 17 In this case the trial court asked the potential jurors if they had any "disagreement or problem" with the Zehr principles but did not ask the potential jurors if they understood those principles. The State concedes the trial court erred in not asking the potential jurors if they understood the principles. We agree. Defendant forfeited review of the error concerning the trial court's questioning of the potential juror's on the Zehr principles by failing to object in the trial court. Defendant argues the trial court's error can be reviewed under the plain error rule.
"Illinois Supreme Court Rule 615(a) provides that *** substantial or what have become known as plain errors may be noticed although they were not brought to the attention of the trial court. [Citation.] As the language of the rule indicates, a reviewing court may exercise discretion and excuse a defendant's procedural default. [Citation.] We have traditionally identified two instances when it is appropriate to do so: (1) when a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error, or (2) when a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence. [Citations.]" (Internal quotation marks omitted.) Id. ¶ 48.¶ 18 Defendant acknowledges our supreme court has held that "[a] Rule 431(b) violation is not cognizable under the second prong of the plain error doctrine, absent evidence that the violation produced a biased jury." Id. ¶ 52 (citing People v. Wilmington, 2013 IL 112938, ¶ 33 (citing People v. Thompson, 238 Ill. 2d 598, 615 (2010))). Defendant does not argue that his jury was biased. Accordingly, the trial court's Rule 431(b) error is not reviewable under the second prong of the plain error rule. Defendant argues the error is reviewable under the first prong because the evidence was closely balanced and the error in failing to ensure the selection of an impartial jury by failing to ask the jurors if they understood the Zehr principles may have tipped the scales against him. The State argues the evidence was not closely balanced. If the evidence is closely balanced in this case, the trial court's Rule 431(b) violation requires us to reverse and remand for a new trial. "[A] clear Rule 431(b) violation is reversible error under the first prong [of the plain error test] where the defendant demonstrates that the trial evidence was close." Sebby, 2017 IL 119445, ¶ 78.
"In determining whether the evidence adduced at trial was close, a reviewing court must evaluate the totality of the evidence and conduct a qualitative, commonsense assessment of it within the context of the case. [Citations.] That standard seems quite simple, but the opposite is true. A reviewing court's inquiry involves an assessment of the evidence on the elements of the charged offense or offenses, along with any evidence regarding the witnesses' credibility." Id. ¶ 53.¶ 19 The Sebby court found that the evidence in that case was closely balanced because "[a]s in [People v.] Naylor, [229 Ill. 2d 584, 607-08 (2008)], the outcome *** turned on how the finder of fact resolved a 'contest of credibility.' [Citation.]" Id. ¶ 63. The court found the evidence was closely balanced in Sebby because both versions of events offered by the prosecution and the defense were credible. Id. In Naylor, our supreme court found the evidence was closely balanced where "[t]he evidence boiled down to the testimony of two police officers against that of [the] defendant." Naylor, 229 Ill. 2d at 608. The court found that "no additional evidence was introduced to contradict or corroborate either version of events. Thus, credibility was the only basis upon which [the] defendant's innocence or guilt could be decided." Id. ¶ 20 In this case, defendant argues the evidence is closely balanced because (a) the evidence was insufficient to establish defendant was in constructive possession of the gun as he sat in the garage; (b) Hargress's credibility is questionable because he could not recall certain details, he failed to tell police the dispute originated from defendant's displeasure with Hargress's grandson dating defendant's girlfriend, and Hargress claimed this girlfriend came to the scene and talked to police but the officers did not recall that occurring; and (c) it defies logic that defendant would threaten Hargress and his entire family then "just sit in the garage next to the gun until the police showed up." The State responds the evidence is not refuted in any way, and the testimony of a single eyewitness is sufficient to sustain a conviction. To prove defendant guilty of armed habitual criminal, the State had to prove defendant possessed a firearm and his qualifying prior convictions. 720 ILCS 5/24-1.7 (West 2016). Defendant stipulated to the qualifying prior felonies; thus, the only question is whether the evidence defendant possessed a firearm is closely balanced. After a qualitative, rather than strictly quantitative, commonsense assessment of the evidence to establish this element of the offense within the context of the circumstances of this case, as well as the evidence and defendant's arguments regarding the witness's credibility, we find the evidence not closely balanced. This is not a case where Hargress's credibility was "the only basis upon which defendant's innocence or guilt could be decided." Naylor, 229 Ill. 2d at 608. In this case, unlike in Naylor, additional evidence to corroborate Hargress's version of events was introduced. ¶ 21 Hargress testified he spoke to defendant because of a dispute between defendant and Hargress's daughter. Rice testified about an incident earlier that day, corroborating Hargress's version of events: Hargress spoke to defendant about an earlier confrontation. Hargress testified that when he went down the alley he encountered defendant sitting in a garage, where defendant threatened him with a handgun. Hargress testified defendant pointed a gun at him, establishing defendant's possession of a firearm. Later, police recovered a handgun from the garage where Hargress testified he saw defendant in possession of a gun. Hargress identified the gun police recovered as the gun defendant possessed. The gun is physical evidence corroborating Hargress's version of events. Further, an assessment of the totality of the evidence in the context of this case also reveals the evidence is not closely balanced. To find the evidence closely balanced in this case, this court would have to find it probable that Hargress lied when he said defendant retrieved a handgun from the seat compartment of a motorcycle and pointed it at him, and fortuitously someone else's gun was on a motorcycle seat in the garage where Hargress claimed the threat occurred. See Belknap, 2014 IL 117094, ¶ 52 (discussing People v. Adams, 2012 IL 111168, ¶ 22). While it may have been illogical for defendant to remain in his garage with a gun after threatening Hargress and his family, the scenario described above, "though not logically impossible, [is] highly improbable." Id. The omission of the dispute over the girlfriend and the discrepancy over whether she was on the scene do not diminish Hargress's testimony sufficiently to find the evidence closely balanced on the central issue of whether defendant possessed a firearm. "Minor conflicts and inconsistencies in testimony do not destroy the credibility of a witness for it is in the province of the trier of fact to resolve such discrepancies. [Citation.] Therefore, where identification is positive, precise consistency as to purely collateral matters is not required to establish guilt beyond a reasonable doubt." People v. Reed, 84 Ill. App. 3d 1030, 1036 (1980). We hold the evidence is not closely balanced in this case and, accordingly, review under the first prong of the plain error test is not available to defendant. Defendant does not argue his jury was biased; therefore, review under the second prong of plain error is not available. Sebby, 2017 IL 119445, ¶ 52 ("[a] Rule 431(b) violation is not cognizable under the second prong of the plain error doctrine, absent evidence that the violation produced a biased jury"). Because the trial court's Rule 431(b) error is not reviewable under either the first or second prong of the plain error rule, defendant cannot meet his burden of persuasion that either of the two prongs of the plain error rule is satisfied; accordingly, we must honor his procedural default of this issue. See People v. McCoy, 405 Ill. App. 3d 269, 273-74 (2010).
¶ 22 II. Trial Court's Comments During Voir Dire
¶ 23 Defendant argues the trial court committed reversible error when it shamed a number of prospective jurors who indicated that they may not be able to be fair due to the nature of the charges and because some of the witnesses would be police officers. Defendant asserts this likely "thwarted the purpose of voir dire by discouraging the remaining venirepersons from being candid about their prejudices and biases" and, therefore, the trial court, by its conduct, "failed to reasonably assure that an impartial jury was impaneled."
"The purpose of voir dire is to assure the selection of an impartial panel of jurors who are free from bias or prejudice. [Citation.] The primary responsibility of conducting the voir dire examination lies with the trial court and the manner and scope of such examination rests within that court's discretion. [Citation.] Indeed, the trial court possesses great latitude in deciding what questions to ask during voir dire. [Citation.] On review, an abuse of the court's discretion will be found only when the record reveals that the court's conduct 'thwarted the selection of an impartial jury.' [Citation.]" People v. Terrell, 185 Ill. 2d 467, 484 (1998).¶ 24 Defendant also forfeited his argument the trial court's comments to the potential jurors resulted in a failure to ensure the selection of an impartial jury by failing to object in the trial court; but defendant asserts the argument is reviewable under the plain error rule. We have already determined that the evidence in this case is not closely balanced. Supra ¶ 21. Therefore, defendant's only refuge lies in the second prong of the plain error rule. "The first step of plain-error review is determining whether any error occurred." Thompson, 238 Ill. 2d at 613. ¶ 25 This court has required proof that the jury was not impartial before finding error from the trial court's conduct during voir dire. People v. Trzeciak, 2014 IL App (1st) 100259-B, ¶ 82 ("Nothing in the record before us supports concluding that any impaneled juror was not impartial."); People v. Ingram, 401 Ill. App. 3d 382, 401 (2010) (finding no evidence the trial judge "thwarted the selection of an impartial jury" and, therefore, "there was no error"). Defendant argues those cases requiring evidence the jury that was impaneled was not impartial were wrongly decided, citing only to the decisions in People v. Brown, 388 Ill. App. 3d 1 (2009) and People v. Morales, 2012 IL App (1st) 101911 (which merely followed Brown, which it found "indistinguishable"), and defendant urges this court to adopt the reasoning of Morgan v. Illinois, 504 U.S. 719 (1992) and the dissent in Brown. ¶ 26 Morgan is readily distinguishable and inapplicable to this case. There, the United States Supreme court held that a state trial court may not, consistent with the due process clause of the fourteenth amendment, refuse to inquire whether a potential juror would automatically impose the death penalty upon conviction of the defendant. Morgan, 504 U.S. at 733-34. The Morgan court found that "part of the guarantee of a defendant's right to an impartial jury is an adequate voir dire to identify unqualified jurors." Id. at 729. Once the Court found that a defendant had the right to inquire whether a prospective juror would always impose death following a conviction, the only issue remaining was "whether the questions propounded by the trial court were sufficient to satisfy [the] petitioner's right to make inquiry." Id. at 734. The Court held they were not because "general questions of fairness and impartiality" were insufficient to reveal whether potential jurors would automatically vote to impose the death penalty upon a finding of guilt. Id. at 734-35. The court held the "risk that such jurors may have been empanelled in this case and 'infected petitioner's capital sentencing [is] unacceptable in light of the ease with which that risk could have been minimized.' [Citation.]" Id. at 736. The Court did not hold that any commentary by a trial judge during jury selection which might be perceived as limiting the juror's responses to questioning, without evidence that a juror was biased, is itself a due process violation. ¶ 27 In this case, defendant has failed to show, as was done in Morgan (Morgan, 504 U.S. at 739), that the procedure employed to select the jury was inadequate to reveal a potential juror's lack of qualifications to serve as a juror despite the trial court's comments. The due process concerns expressed in Morgan are not present here; therefore, we do not find error under Morgan. See also Brown, 388 Ill. App. 3d at 9 (distinguishing Rowe on the basis that in Brown "defense counsel was allowed to question all the prospective jurors after the initial voir dire by the trial judge, doing so only as to some. Defense counsel was free to ask questions that might ferret out actual bias on the part of any of the prospective jurors based on any ground, including whether the trial judge's treatment of the dismissed prospective juror silenced the remaining prospective jurors that might harbor bias."). ¶ 28 In People v. Brown, 388 Ill. App. 3d 1 (2009), the court found the defendant failed to establish that a trial judge's remarks to a potential juror thwarted the selection of an impartial jury and thus the claimed error was forfeited. Brown, 388 Ill. App. 3d at 9, 11. In that case, a potential juror informed the trial judge he did not think he could not be impartial based on the nature of the charges and his personal experiences. Id. at 2-3. The trial judge excused the potential juror but ordered him to return to court the next day because the trial judge planned on "picking 12 individuals who are going to be able to be fair and impartial to both sides in this case and I think you need an education as to how the system works." Id. at 3. Although the Brown court stated about the trial judge's comments that "[a]nything that might reduce [the] frank exchange [between the prospective juror and the questioner] should be avoided (id. at 5), the court rejected, "as grounded on nothing more than speculation, the defendant's contention that the conduct engaged in by the trial judge here impacted his right to a fair trial" (id. at 10). In reaching that conclusion the court distinguished the decision of the Fifth Circuit Court of Appeals in United States v. Rowe, 106 F.3d 1226 (5th Cir. 1997). ¶ 29 In Rowe, "the defendants argued that certain comments made by the trial judge during voir dire frightened the venire into silence, thus rendering the jury selection process meaningless." Brown, 388 Ill. App. 3d at 6 (citing Rowe, 106 F.3d at 1228). In Rowe, the trial judge excused a potential juror who indicated she did not feel her verdict could be fair, but ordered the potential juror to be brought back for jury duty for three more months and to "see if you can figure out how to put aside your personal opinions and do your duty to your country as a citizen." Id. The trial judge in Rowe made a similar order regarding a second potential juror who indicated she may not be fair and impartial. Id. at 6-7 (citing Rowe, 106 F.3d at 1228-29). On appeal, the Rowe court reversed and remanded, "finding the trial court abused its discretion when it failed to dismiss the [jury] panel on defense counsel's motion." Brown, 338 Ill. App. 3d at 7 (citing Rowe, 106 F.3d at 1230). The Rowe court noted that both potential jurors "were 'accused by the [trial] court of refusing to follow instruction and attempting to avoid jury service, and then sanctioned.' [Citation.]" Id. (citing Rowe, 106 F.3d at 1229-30). "The court in Rowe further held that the prejudice aspect need not be explored, stating that '[d]efendants need not show specific prejudice from a voir dire procedure that cut off meaningful responses to critical questions.' [Citation.]" Id. at 7 (citing Rowe, 106 F.3d at 1230). The Brown court stated it had "no disagreement with the Rowe decision" but found the differences between Rowe and the case before it "too striking" for Rowe to control the outcome." Id. at 8. ¶ 30 The dissenting justice in Brown found the second prong of the plain-error analysis applied: "an error so serious that it affected the fairness of defendant's trial." Brown, 388 Ill. App. 3d at 13 (Gordon, J., dissenting). The dissent held "when a judge punishes a prospective juror in front of the entire array of jurors for admitting that he or she cannot be fair, *** the entire array of jurors has been tainted, and the parties cannot receive a fair trial." Id. at 15. The dissent noted that "[i]n distinguishing between reversible and non-reversible admonishments to the venire panel, our colleagues on the federal bench have drawn a line between criticism and threats, with criticism falling on the non-reversible side and threats of punishment falling on the reversible side." Id. at 14. The dissent found that "[a]pplying the distinction drawn by our colleagues on the federal bench to the facts of the case before us reveals that the trial court's behavior fell on the reversing side of the line." Id. Thus, the dissent found that the difference from the majority was "not one of kind but degree." Id. at 15. The dissent found "the threat of one-day's punishment was a sufficient deterrent to require reversal." Id. On the contrary, the majority had found that while the trial judge's actions differed "both in kind and degree from the federal district court's actions properly criticized in Rowe." Brown, 388 Ill. App. 3d at 9. The majority found that while the "trial judge here imposed the requirement that the dismissed venire person return the next day, that action did not rise to the penalty imposed in Rowe, where the dismissed juror was ordered to return for the jury panel for February, March and April, and perhaps [to take] some remedial constitutional inquiries in the meantime. [Citation.]" (Internal quotation marks omitted.) Id. (citing Rowe, 106 F.3d at 1228). ¶ 31 Regardless of the disagreement in Brown as to on "what side" the trial judge's comments in that case fell, the decision is in accord on the proposition that the "kind" of comments made by the trial court is relevant to determining whether plain error occurred. See Brown, 388 Ill. App. 3d at 9, 15. The dissent, on which defendant in this case relies, is instructive as to what constitutes "criticism" and what constitutes "threats," the latter which the Brown dissent would find reversible under a second-prong plain error analysis. In describing this distinction, the dissenting justice in Brown noted that the same appellate court that decided Rowe found "no error" in another case "because the trial judge 'did not expressly or impliedly threaten to punish venire members who claimed bias,' but merely criticized a juror for volunteering her bias before the question had even been asked." Brown, 388 Ill. App. 3d at 14 (Gordon, J., dissenting) (citing United States v. Vega, 221 F.3d 789, 803 (5th Cir. 2000)). The dissent also cited United States v. Colabella, 448 F.2d 1299, 1394 (2nd Cir. 1971) for its holding that there was "no error" where the trial judge's comments merely expressed displeasure with potential jurors who claimed to have prejudged the case. Id. (citing Colabella, 448 F.2d at 1304). ¶ 32 In this case, there can be no reasonable argument the trial court made any threat of punishment toward the potential jurors who expressed they may have a bias. See id. at 14-15. At worst, the trial court might be said to have expressed dissatisfaction with the answers of potential jurors who expressed they may have a prejudice or inability to be fair. There was no threat of punishment of the potential jurors. Thus we do not have here the dissenting justice's concern in Brown that asking potential jurors if the trial judge's questioning intimidated them would be ineffective in this case, where the trial court did not threaten to sanction the potential jurors who expressed they might be prejudiced. See id. at 12. Even if we were to follow the reasoning of the dissent in Brown, as defendant asks us to do, we would hold the trial court's comments in this case were not erroneous. Id. at 14 (citing Vega, 221 F.3d at 803; Colabella, 448 F.2d at 1394). Even if there was error, we would find the court did not commit "an error so serious that it affected the fairness of defendant's trial." Id. at 13-15. "Absent evidence that the instant defendant did not receive a fair trial before a fair and unbiased jury, there is no basis to find plain error." People v. Morales, 2012 IL App (1st) 101911, ¶ 60 (citing Brown, 388 Ill. App. 3d at 11). Because the trial court at worst may have expressed displeasure with the potential jurors who admitted they were prejudiced and there is no evidence defendant's jury was not impartial we find no error occurred. Trzeciak, 2014 IL App (1st) 100259-B, ¶ 82 (citing People v. Lewis, 165 Ill. 2d 305, 344 (1995)). ¶ 33 Finally, defendant argues the trial court's failure to comply with Rule 431(b) worked in conjunction with the court's allegedly improper comments "shaming" the jurors during voir dire to affect the fairness of his trial. However, this argument necessarily fails because we find no clear error occurred with the court's comments to the potential jurors. "Absent reversible error, there can be no plain error." Naylor, 229 Ill. 2d at 602. The trial court's Rule 401(b) admonishments were erroneous because the trial court did not ask potential jurors if they understood the Zehr principles. However, that error was not plain error. The trial court's comments during voir dire were not reversible error. We do not find that the court's clear (but not plain) Rule 401(b) error combined with comments that were not reversible error to produce plain error.
"Because the 'inadequacy of voir dire' leads us to doubt that petitioner was sentenced to death by a jury empanelled in compliance with the Fourteenth Amendment, his sentence cannot stand." Morgan, 504 U.S. at 739. --------
¶ 34 III. Other-Crimes Evidence
¶ 35 Next we address defendant's argument he was deprived of a fair trial by the erroneous admission of other-crimes evidence. Defendant argues the error in the admission of the evidence was compounded by the trial court's failure to give the jury a limiting instruction not to consider the evidence as evidence of his propensity to commit crimes. The evidence about which defendant complains is testimony that he threw bricks through the window of Rice's car and rammed Rice's and Hargress's cars with a tow truck. Defendant argues that testimony was irrelevant to the question of whether he possessed a firearm and "served only to paint [him] as a bad person with the propensity to commit crimes." Defendant claims "[a]t most, all the jury needed to know was that Hargress stopped to confront [defendant] about an alleged prior incident between [defendant] and members of Hargress's family." The State responds Rice's testimony was admissible as "part of the continuing narrative of the event giving rise to the offense." The State asserts defendant's "charged crimes stemmed from the earlier incident, which provide[s] context as to why he ended up threatening Hargress with a loaded firearm;" thus "[i]t was necessary for the jury to hear all of the testimony to understand the continuing narrative of events in this case." Moreover, the State argues because the evidence was admissible as part of the continuing narrative of events the trial court was not required to give a limiting instruction on the proper use of the evidence. ¶ 36 Defendant admits he forfeited review of this alleged error but asks that it be considered under the plain error rule. Again, "[t]he first step of plain-error review is determining whether any error occurred." Thompson, 238 Ill. 2d at 613. ¶ 37 Evidentiary rulings are within the sound discretion of the trial court; and we will not reverse them on appeal unless the trial court abused its discretion. People v. Thompson, 2013 IL App (1st) 113105, ¶ 100. "An abuse of discretion will be found only where the trial court's ruling is arbitrary, fanciful, unreasonable, or where no reasonable person would take the view adopted by the trial court. [Citation.]" Id.
"Evidence of other offenses is admissible if used for a purpose other than to demonstrate the defendant's propensity to commit crime. [Citation.] Other-crimes evidence is *** admissible if it is part of a continuing narrative of the event giving rise to the offense [citation], is intertwined with the event charged [citation], or explains an aspect of the crime charged that would otherwise be implausible [citation]. [Citation.] [W]hen facts concerning uncharged criminal conduct are all part of a continuing narrative which concerns the circumstances
attending the entire transaction, they do not concern separate, distinct, and unconnected crimes. [Citations.]" Id. ¶ 101."When other-crimes evidence is offered, the trial court must weigh its probative value against its prejudicial effect and may exclude the evidence if its prejudicial effect substantially outweighs its probative value. [Citation.]" People v. Thompson, 359 Ill. App. 3d 947, 951 (2005). ¶ 38 We hold evidence concerning the earlier incident where defendant damaged Rice's and Hargress's vehicles was admissible as "part of a continuing narrative of the event giving rise to the offense." Thompson, 2013 IL App (1st) 113105, ¶ 101. Defendant replies this view is contrary to the State's evidence in the case, which establishes that "the alleged motive for the threats was the dispute over the woman, not the alleged incident with the cars." So, according to defendant, "there was no need to go into the details of the prior incident to explain Hargress's confrontation with [defendant]." We disagree, and find the facts in Thompson, 359 Ill. App. 3d at 951-52, are analogous. In that case, three witnesses testified regarding an incident where the defendant slammed a woman's head into a stove. Thompson, 359 Ill. App. 3d at 948-50. The three witnesses testified that because of the earlier incident involving the woman, a confrontation ensued between the defendant and the victim. Id. Specifically, the victim testified he verbally confronted the defendant because of the incident which caused the defendant to attack him with a knife. Id. at 949. Two other witnesses testified they and the victim were confronting the defendant about the incident involving the woman when the defendant got a knife and started attacking. Id. The court found that the earlier incident involving the woman was "part of the events that led to the charged offenses as it explains how the altercation between [the victim] and [the] defendant arose." Id. at 951. Thus the evidence "was relevant for another purpose other than to show the propensity to commit crime." Id. at 952. The court also held the probative value of the evidence was not outweighed by its prejudicial effect because the earlier incident "was a significant part of the facts that led to the knife incident, and the evidence regarding the [earlier] incident was limited to its role in the knife incident." Id. ¶ 39 In this case, the incident with the vehicles is the reason Hargress confronted defendant. Defendant's reply that the motive for defendant's threat was the dispute over the girlfriend ignores the fact that when Hargress approached defendant, he initially asked defendant why defendant had damaged their cars. Defendant argues Thompson does not support the State's position because in that case the other-crimes evidence was necessary to explain the defendant's conduct, whereas in this case "the prior incident with the cars was not necessary to explain why [defendant] allegedly threatened Hargress." That argument mischaracterizes the holding in Thompson. The Thompson court held the earlier incident "explains how the altercation between [the victim] and [the] defendant arose," (id. at 951), not that the earlier incident explained the defendant's conduct. In this case, the damage to the vehicles explains how the confrontation between defendant and Hargress arose. The girlfriend may have been the reason defendant threatened Hargress, but the damage to the vehicles is the reason Hargress went to talk to defendant. Accordingly, we find Rice's testimony regarding the incident with the vehicles "was relevant for another purpose other than to show the propensity to commit crime." See id. at 952. Just as in Thompson, we find the incident involving the cars was a significant part of the facts that led to the gun incident, and the evidence regarding the incident with the vehicles was limited to its role in the gun incident. Thus, we hold the probative value of the evidence relating to the incident with the vehicles outweighed its prejudicial effect. See also People v. McFarland, 259 Ill. App. 3d 479, 481 (1994) (holding evidence related to "other crime" "set the stage for the confrontation that occurred" between the defendant and the victim weeks later and made victim's testimony more plausible). ¶ 40 The trial court did not abuse its discretion in admitting the evidence; nor did the trial court err in not giving a limiting instruction. "[A] limiting instruction is not required when, as here, the other-crimes evidence is an integral part of the context of the crime for which defendant has been tried. [Citation.]" (Internal quotation marks omitted.) Thompson, 359 Ill. App. 3d at 953. Additionally, "a defendant cannot establish prejudice as to his counsel's failure to request a limiting instruction when—as here—the other-crimes evidence is an integral part of the context of the crime for which defendant has been tried." (Internal quotation marks omitted.) People v. Johnson, 368 Ill. App. 3d 1146, 1161 (2006).
¶ 41 IV. Constitutionality of the AHC Statute
¶ 42 Finally, we turn to defendant's argument the AHC statute is facially unconstitutional because it criminalizes both the legal and the illegal possession of firearms.
"The constitutionality of a statute is reviewed de novo. [Citation.] All statutes are presumed to be constitutional, and the party challenging the statute has the 'heavy burden' of overcoming this presumption by clearly establishing a constitutional violation. [Citation.] Furthermore, it is our duty to uphold a statute's constitutionality 'whenever reasonably possible, resolving any doubts in favor of its validity.' [Citation.] A facial challenge to a statute, in contrast to an 'as applied' challenge, is 'the most difficult' because 'the challenger must establish that no set of circumstances exists under which the Act would be valid. [Citations.]' (Internal quotation marks omitted.) [Citation.]" People v. Fulton, 2016 IL App (1st) 141765, ¶ 20.¶ 43 Defendant's argument is premised on the proposition that Illinois law does not wholly prevent any class of individuals from possessing a firearm, "including those twice convicted of crimes set forth in the AHC statute." Rather, under section 10 of the Firearm Owners Identification Card Act (FOID Card Act), as interpreted by our supreme court in Coram v. The State of Illinois, 2013 IL 113867, ¶ 58, there is a "meaningful avenue for anyone seeking to exercise their right to bear arms." In Coram, our supreme court held:
"The language of the Illinois Constitution suggests that the right, or 'rights,' of Illinois citizens to keep and bear arms are not generic or categorical, that Illinois secures to its citizens, via the Illinois Constitution and implementing laws, individualized consideration of a person's rights to keep and bear arms. That policy is reflected in the provisions of Illinois' FOID Card Act (see 430 ILCS 65/5, 8, 10 (West 2010)), which mandates individual assessment of a person's application and circumstances by the Department of State Police in the first instance, and individualized judicial consideration of the basis for denial of a FOID card—without which firearm possession is illegal under state law—and judicial relief from that denial in appropriate circumstances." Coram, 2013 IL 113867, ¶ 58.Thus, defendant argues, "both the FOID Card Act and the Illinois Constitution as detailed in Coram, establish that the possession of a firearm by a person twice convicted of offenses set forth in the AHC statute is not, by itself, a criminal act. Rather, Illinois law only intends for that act to be a crime if it is also shown that the person did not have a FOID card at the time he possessed the firearms." Defendant argues that because the AHC statute does not require the additional showing that the defendant did not possess a valid FOID card, the statute potentially criminalizes lawful conduct. Defendant acknowledges this court recently rejected a similar argument but asserts this court should not follow that decision because it ignores the requirement stated in Coram of individualized consideration of a person's right to keep and bear arms. ¶ 44 In People v. Fulton, 2016 IL App (1st) 141765, ¶ 31, the court held that the AHC statute is constitutional. The Fulton court adopted the reasoning in People v. Johnson, 2015 IL App (1st) 133663, ¶ 27, which held as follows:
"While it may be true that an individual could be twice-convicted of the offenses set forth in the armed habitual criminal statute and still receive a FOID card under certain unlikely circumstances, the invalidity of a statute in one particular set of circumstances is insufficient to prove that a statute is facially unconstitutional. [Citation.] The armed habitual criminal statute was enacted to help protect the public from the threat of violence that arises when repeat offenders possess firearms. [Citation.] The Supreme Court explicitly noted in District of Columbia v. Heller, 554 U.S. 570[, 626, 128 S. Ct. 2783, 171 L. Ed. 2d 637] (2008), that 'nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.' [Citation.] *** Accordingly, we find that the potential invalidity of the armed habitual criminal statute in one very unlikely set of circumstances does not render the statute unconstitutional on its face. [Citation.]" (Internal quotation marks omitted.) Fulton, 2016 IL App (1st) 141765, ¶ 23 (quoting Johnson, 2015 IL App (1st) 133663, ¶ 27).The Fulton court found "no reason to depart from the holding in Johnson." Id. The Fulton court also distinguished People v. Madrigal, 241 Ill. 2d 463 (2011), and People v. Carpenter, 228 Ill. 2d 250 (2008), also relied upon by defendant in this case. Id. ¶ 28. The Fulton court held that "[u]nlike the conduct discussed in Madrigal and Carpenter, a twice-convicted felon's possession of a firearm is not 'wholly innocent' and is, in fact, exactly what the legislature was seeking to prevent in passing the armed habitual criminal statute." Id. ¶ 31. ¶ 45 Defendant's argument that we should not follow Fulton is not persuasive. Defendant argues Fulton fails to take into consideration the requirement in Coram "that there be 'individualized consideration of a person's rights to keep and bear arms.' [Citation.]" We disagree. Johnson, relied on in Fulton, found that "an individual could be twice-convicted of the offenses set forth in the [AHC] statute and still receive a FOID card under certain unlikely circumstances" but "the invalidity of a statute in one particular set of circumstances is insufficient to prove that a statute is facially unconstitutional. [Citation.]" (Emphases added.) Johnson, 2015 IL App (1st) 133663, ¶ 27; Fulton, 2016 IL App (1st) 141765, ¶ 25 (finding defendant's one particular set of unlikely circumstances insufficient to render the armed habitual criminal statute facially unconstitutional). Moreover, this precise argument has been rejected by this court:
"[The defendant] urges this court not to follow Johnson and Fulton because those cases were silent regarding the required individualized consideration of a person's right to possess a firearm as recognized in Coram[]. But Johnson and Fulton found Coram inapposite because it analyzed a prior version of the FOID Card Act (pre-2013 amendments) in upholding the individualized consideration of a person's right to possess a firearm. Johnson, 2015 IL App (1st) 133663, ¶ 29; Fulton, 2016 IL App (1st) 141765, ¶ 24. Fulton further found Coram distinguishable because it did not address the constitutionality of the AHC statute. Fulton, 2016 IL App (1st) 141765, ¶ 24. We find no basis to invalidate the substantial authority upholding the constitutionality of the AHC statute and adopt the soundly reasoned decisions in Johnson and Fulton. Accordingly, we reject West's claim that the AHC statute is facially unconstitutional as a violation of due process." People v. West, 2017 IL App (1st) 143632, ¶ 22.¶ 46 The argument before us posits the "invalidity of the statute in [only] one particular set of circumstances" rather than the statute's invalidity "under any imaginable set of circumstances," which is fatal to the claim the AHC statute is facially unconstitutional. See In re M.T., 221 Ill. 2d 517, 536-37 (2006) ("Successfully making a facial challenge to a statute's constitutionality is extremely difficult, requiring a showing that the statute would be invalid under any imaginable set of circumstances. The invalidity of the statute in one particular set of circumstances is insufficient to prove its facial invalidity."). We adhere to the holdings in Fulton and Johnson and find the AHC statute is constitutional.
¶ 47 CONCLUSION
¶ 48 For the foregoing reasons, the circuit court of Cook County is affirmed. ¶ 49 Affirmed.