Opinion
4-23-0525
05-16-2024
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DIABOLIQUE BENTON, Defendant-Appellant.
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Adams County No. 22CF642 Honorable Talmadge "Tad" Brenner, Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court. Justices Zenoff and Turner concurred in the judgment.
ORDER
HARRIS JUSTICE
¶ 1 Held: The appellate court affirmed in part and reversed in part, holding:
(1) Pursuant to the State's concession, defendant's convictions for operating an uninsured motor vehicle and leaving the scene of an accident are reversed outright because there was insufficient evidence to support the convictions.
(2) The trial evidence was sufficient to prove defendant guilty of aggravated fleeing or attempting to elude a peace officer.
(3) Defendant's forfeited claim that the trial court violated Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) was not reviewable under the first prong of the plain error doctrine.
(4) Defendant's forfeited claim that the prosecutor improperly impeached him with his prior conviction during cross-examination was not reviewable under the first prong of the plain error doctrine, and he failed to establish a claim of ineffective assistance of counsel based on his counsel's failure to object.
(5) The cumulative effect of the trial court's violation of Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) and the State's improper impeachment of defendant did not rise to the level of second-prong plain error.
(6) Defendant failed to show his trial counsel was ineffective for stipulating to restitution.
¶ 2 Defendant, Diabolique Benton, appeals his convictions for aggravated fleeing or attempting to elude a peace officer, leaving the scene of an accident, and operating an uninsured motor vehicle. Defendant argues (1) the evidence was insufficient to prove him guilty beyond a reasonable doubt of aggravated fleeing or attempting to elude a peace officer, (2) his conviction for leaving the scene of an accident should be reversed because the jury was improperly instructed concerning the offense, (3) the trial court failed to ascertain whether one of the jurors understood and accepted two of the principles set forth in Illinois Supreme Court Rule 431(b) (eff. July 1, 2012), (4) the prosecutor exceeded the scope of direct examination when crossexamining defendant as to whether the vehicle involved in the incident was insured, (5) the prosecutor improperly impeached defendant with his prior conviction during cross-examination, (6) the cumulative effect of the identified trial errors deprived defendant of a fair trial, and (7) defense counsel provided ineffective assistance by stipulating to restitution in the amount of $63,897.52. We affirm in part and reverse in part.
¶ 3 I. BACKGROUND
¶ 4 Defendant was charged with aggravated fleeing or attempting to elude a peace officer (625 ILCS 5/11-204.1(a)(3) (West 2022)), operating an uninsured motor vehicle (id. § 3707), leaving the scene of an accident (id. § 11-402), and operating a vehicle with a suspended registration (id. § 3-702). The charge of operating a vehicle with a suspended registration was dismissed on the motion of the State, and the matter proceeded to a jury trial on the remaining three charges.
¶ 5 Officer Patrick Hollensteiner of the Quincy Police Department testified that, at approximately 3:50 a.m. on the morning of the incident, he responded to a call regarding "a disturbance near Sixth and Van Buren." When he arrived at the area, no one was there. As he was preparing to leave, someone flagged him down and reported that defendant was following him. The individual pointed out defendant's vehicle, and Hollensteiner began following defendant. Defendant increased his speed, leading Hollensteiner to believe defendant knew he was following him. Defendant then turned onto Fifth Street.
¶ 6 Hollensteiner stated he activated his lights and siren and attempted to conduct a traffic stop. Hollensteiner had not yet turned onto Fifth Street when he first activated his lights and siren. Hollensteiner then turned onto Fifth Street, and defendant's vehicle was approximately one to one and a half blocks ahead. Hollensteiner indicated he was traveling at a speed of approximately 50 miles per hour, and defendant was driving at a speed of approximately 70 miles per hour. Officer Richard Peat pulled in front of Hollensteiner and activated his lights and siren. Hollensteiner then advised Peat to terminate the pursuit. Hollensteiner explained the officers had a policy of only pursuing vehicles in the event of a forcible felony, and there was no evidence defendant had committed a forcible felony. Hollensteiner stated the officers had their lights and sirens on for approximately one or two blocks.
¶ 7 Hollensteiner testified that, after he turned off his lights and siren, he continued driving in the same direction defendant had been driving. He observed a cloud of smoke on the northeast corner of Fifth and Jefferson Streets. He saw that defendant's vehicle had driven into a house, causing structural damage to the house. Hollensteiner searched the vehicle to see if anyone was injured, but no one was inside. Officers followed a blood trail leading away from the vehicle. The blood trail led them to an individual who was approximately half a block away. The individual ran when he saw the officers, and the officers were not able to catch up. Hollensteiner identified photographs of the vehicle that had crashed into the house, and he indicated it was the same vehicle he had tried to stop earlier. Hollensteiner stated he searched the vehicle but was unable to find any insurance information.
¶ 8 Hollensteiner testified that his squad car had a dashboard camera that was operating on the night of the incident. Video from the camera was admitted into evidence, which showed Hollensteiner following defendant's vehicle through an apartment complex parking lot. It was dark at the time. After a few seconds, defendant's vehicle turned and was no longer visible on the video. Hollensteiner turned to follow defendant and activated his lights and siren once he reached the street. At the time Hollensteiner activated his lights and siren, defendant's vehicle was not visible on the video. Hollensteiner then turned onto the street from the parking lot, and defendant's vehicle could be seen in the distance. Officer Peat's vehicle pulled in front of Hollensteiner's vehicle shortly after Hollensteiner turned onto the street. Hollensteiner turned off his lights and siren approximately 12 seconds after turning them on. Peat turned his lights and siren off approximately five seconds after Hollensteiner. The video showed Hollensteiner arriving at the scene of defendant's wrecked vehicle less than one minute after turning off his lights and siren.
¶ 9 Hollensteiner testified that defendant was apprehended a few days after the incident, and he subsequently interviewed defendant in the county jail. Defendant was very apologetic and discussed "how bad of an accident it was." He indicated he did not see the officers' lights or hear their sirens that morning when they attempted to conduct a traffic stop. The prosecutor asked Hollensteiner if defendant provided him with insurance information during the interview, and Hollensteiner indicated he did not. Hollensteiner testified that defendant was not the registered owner of the vehicle. Hollensteiner did not contact the registered owner, and he had never been presented with any insurance information for the vehicle at any point during the case.
¶ 10 Peat testified that, in the early morning hours on the day of the incident, he responded to a radio call from Hollensteiner requesting assistance. Hollensteiner informed him he was attempting to conduct a traffic stop on defendant's vehicle, but defendant was not pulling over. Peat drove to the intersection of Fifth and Harrison Streets. He observed a silver vehicle traveling north on Fifth Street drive through the intersection without stopping at the stop sign. The vehicle was traveling at a speed of approximately 30 to 40 miles per hour. Peat pulled behind the suspect vehicle and activated his lights and siren. Peat began following the vehicle and was initially traveling at a speed of approximately 30 miles per hour. Defendant was driving faster than Peat. Peat followed defendant for approximately two blocks. Hollensteiner then indicated he wished to terminate the pursuit, and Peat turned off his lights and siren. Peat indicated that his lights and siren had been on for "[a] few seconds."
¶ 11 Video from Peat's squad car was played for the jury. The video showed Peat stopping at an intersection and defendant's vehicle driving by at a high rate of speed. Peat turned onto the street defendant was driving down and activated his lights and siren. There were no other cars between Peat's vehicle and defendant's vehicle. Peat's lights and siren were activated for approximately eight seconds. Defendant's vehicle drove away at a high rate of speed and did not stop.
¶ 12 Jeremy Mosley, who was renting the house defendant crashed into during the incident, testified that his family lost personal property as a result of the crash that had a total value of approximately $500. Andrew Wiseman, the owner of the house, testified that the foundation of the house had been damaged during the crash, and the necessary repairs to make the house structurally sound would cost approximately $16,000. He indicated it would likely cost approximately $50,000 to get the house back to a "livable condition."
¶ 13 Defendant testified that he did not see any flashing lights or hear any sirens from the officers' squad cars prior to the crash. He indicated he would have pulled over if he had. He stated he was traveling at a speed of 50 miles per hour "at the most" on Fifth Street. He was traveling at this speed because he was upset about something that happened earlier that morning and "was just basically trying to get out of there." On cross-examination, the prosecutor asked defendant if the vehicle belonged to him, and defendant indicated it did not. The prosecutor asked whether the vehicle had "any kind of insurance on it." Defendant replied, "Not that I am aware of. Not that I was aware of, sir, at the time."
¶ 14 The following exchange occurred between the prosecutor and defendant during cross-examination:
"Q. [Defendant], do you have a-a prior conviction for a felony ***?
A. Yes, I do.
Q. Would that be for residential burglary in-
A. Yes, it would be.
Q. -Adams County Case 19-CF-994?
A. Yes, sir.
Q. And so you are a-you are a felon?
A. I am a felon."
¶ 15 The jury found defendant guilty of all three charged offenses.
¶ 16 At the sentencing hearing, the State requested that defendant pay restitution in the amount of $63,897.52. Defense counsel stipulated to the State's restitution figures, and the trial court ultimately ordered defendant to pay restitution in the amount of $63,897.52. The court also sentenced defendant to 5 years' imprisonment for aggravated fleeing or attempting to elude a peace officer, 364 days' imprisonment for leaving the scene of an accident, and a fine for operating an uninsured motor vehicle. This appeal followed.
¶ 17 II. ANALYSIS
¶ 18 On appeal, defendant argues (1) the evidence was insufficient to prove him guilty beyond a reasonable doubt of aggravated fleeing or attempting to elude a peace officer, (2) his conviction for leaving the scene of an accident cannot stand because the jury was not instructed as to a legislatively recognized offense, (3) the trial court failed to ascertain whether one of the jurors understood and accepted two of the principles set forth in Illinois Supreme Court Rule 431(b) (eff. July 1, 2012), (4) the prosecutor exceeded the scope of direct examination when cross-examining defendant as to whether the vehicle involved in the incident was insured, (5) the prosecutor impeached defendant with his prior conviction in an improper manner, (6) the cumulative effect of the identified trial errors deprived defendant of a fair trial, and (7) defense counsel provided ineffective assistance by stipulating to restitution in the amount of $63,897.52.
¶ 19 A. State's Confession of Error
¶ 20 Initially, we address the State's concessions in its brief that defendant's convictions for failing to leave the scene of an accident and operating an uninsured motor vehicle should be reversed outright. Though defendant did not challenge the sufficiency of the evidence as to these convictions, the State contends both convictions were supported by insufficient evidence and should be reversed.
¶ 211. Leaving the Scene of an Accident
¶ 22 The State argues that defendant's conviction for leaving the scene of an accident should be reversed outright. The State notes that the sentencing order indicates defendant was convicted of failure to give information and render aid pursuant to section 11-403 of the Illinois Vehicle Code (625 ILCS 5/11-403 (West 2022)). The State contends this conviction should be reversed because there was no evidence indicating the accident in this case resulted in injury to another person or damage to a vehicle being driven by another person, as required under section 11-403 of the Vehicle Code (id.). While there was evidence that defendant left the scene of a motor vehicle accident that caused damage to property, the State contends defendant was neither charged with nor convicted of the offense of leaving the scene of a motor vehicle accident causing property damage pursuant to section 11-404 of the Vehicle Code (id. § 11-404).
¶ 23 When presented with a challenge to the sufficiency of the evidence, we consider whether, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. People v. Collins, 106 Ill.2d 237, 261 (1985).
¶ 24 After reviewing the record, we accept the State's confession of error and find there was insufficient evidence to support defendant's conviction for leaving the scene of a motor vehicle accident. The record in this case shows that defendant was charged with leaving the scene of an accident pursuant to section 11-402 of the Vehicle Code (625 ILCS 5/11-402 (West 2022)), which applies where a motor vehicle accident results only in damage to a vehicle which is driven by another person. As defendant correctly notes in his brief, the instruction given to the jury concerning the charge of leaving the scene of an accident combined elements of leaving the scene of an accident pursuant to section 11-402 of the Vehicle Code (id.) with elements of leaving the scene of an accident pursuant to section 11-404 of the Vehicle Code (id. § 11-404), an offense defendant was not charged with. The trial court's sentencing order indicates defendant was convicted of yet a third offense-namely, violating section 11-403 of the Vehicle Code (id. § 11-403), which concerns a driver's duty to provide information and render aid when involved in an accident resulting in injury to a person or damage to a vehicle being driven by another.
¶ 25 The evidence at trial showed defendant crashed his vehicle into a house, causing extensive damage to the house. There was no evidence that this crash caused injury to any other person or damage to a vehicle being driven by another person such that either section 11-402 or section 11-403 of the Vehicle Code (id. §§ 11-402, 11-403) would be implicated. While there was evidence that defendant's acts may have constituted a violation of section 11-404 of the Vehicle Code (id. § 11-404), the record supports the State's concession that defendant was neither charged with nor convicted of that offense. Accordingly, we accept the State's concession and find defendant's conviction for leaving the scene of a motor vehicle accident must be reversed outright.
¶ 26 2. Operating an Uninsured Motor Vehicle
¶ 27 The State also argues that defendant's conviction for operating an uninsured motor vehicle should be reversed because the State failed to prove beyond a reasonable doubt that the vehicle was actually uninsured. Again, when presented with a challenge to the sufficiency of the evidence, we consider whether, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Collins, 106 Ill.2d at 261.
¶ 28 Section 3-707(a) of the Vehicle Code (625 ILCS 5/3-707(a) (West 2022)) provides: "No person shall operate a motor vehicle in this State unless the motor vehicle is covered by a liability insurance policy in accordance with Section 7-601 of this Code." An individual is deemed to be operating an uninsured vehicle if he or she "fails to comply with a request by a law enforcement officer for display of evidence of insurance." Id. § 3-707(b). However, the mere fact that an officer was not shown an insurance card, in the absence of evidence that the officer ever asked anyone to produce one, is "insufficient to prove beyond a reasonable doubt, either directly or by reasonable inference, that the defendant was driving an uninsured vehicle." People v. Merritt, 318 Ill.App.3d 115, 117 (2001).
¶ 29 Here, the evidence, viewed in the light most favorable to the State, was insufficient to prove the vehicle driven by defendant during the incident was uninsured, which was a required element of the offense under section 3-707(a) of the Vehicle Code (625 ILCS 5/3-707(a) (West 2022)). The trial evidence showed only that officers did not locate an insurance card in the vehicle immediately after the crash and that defendant failed to produce proof of insurance to a police officer during the pendency of the case. It was uncontroverted that defendant was not the registered owner of the vehicle, and there was no evidence that any officer contacted the owner of the vehicle concerning insurance information.
¶ 30 Pursuant to section 3-707(b) of the Vehicle Code (id. § 3-707(b)), an individual is deemed to be operating an uninsured motor vehicle if he or she fails to provide proof of insurance after being requested to do so by a law enforcement officer. However, this presumption did not apply in the instant case because there was no evidence that any officer ever asked defendant to provide proof of insurance. Though Hollensteiner testified that defendant did not produce proof of insurance when he interviewed him in jail, Hollensteiner did not indicate he requested proof of insurance during this interview. Defendant stated during his testimony that he was "not *** aware of' the vehicle having insurance, arguably supporting an inference that he would not have been able to provide proof of insurance if he had been asked to do so. However, in the absence of evidence that defendant was actually asked to provide proof of insurance and failed to do so, the statute does not provide for a presumption that defendant was operating an uninsured motor vehicle. See id.; Merritt, 318 Ill.App.3d at 117. Instead, the State was required to present evidence establishing the vehicle was actually uninsured, which it failed to do. Accordingly, we accept the State's concession of error and find defendant's conviction for operating an uninsured motor vehicle must be reversed.
¶ 31 As we have found that defendant's convictions for leaving the scene of an accident and operating an uninsured motor vehicle must be reversed outright, we do not address defendant's arguments that the jury was given an improper nonpattern instruction for the offense of leaving the scene of an accident or that the State improperly exceeded the scope of its direct examination by cross-examining him as to whether the vehicle he was driving during the incident was insured. These arguments concern only defendant's convictions for leaving the scene of an accident and operating an uninsured motor vehicle.
¶ 32 B. Sufficiency of the Evidence: Aggravated Fleeing or Attempting to Elude a Peace Officer
¶ 33 Defendant argues the trial evidence was insufficient to prove him guilty beyond a reasonable doubt of aggravated fleeing or attempting to elude a peace officer. Defendant notes that he testified at trial that he did not see the officers' lights or hear their sirens, and he argues the other evidence at trial supported his testimony. He asserts the evidence showed Hollensteiner was "well behind" him at the time he activated his lights and siren, and the officers' lights and sirens were only on for a few seconds. Defendant also notes that he offered an explanation for his speed-namely, that he was upset about something that had occurred earlier that morning and was "trying to get out of there."
¶ 34 When presented with a challenge to the sufficiency of the evidence," 'the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" (Emphasis in original.) Collins, 106 Ill.2d at 261 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). "We will not reverse a conviction unless the evidence is so unreasonable, improbable or unsatisfactory that it raises a reasonable doubt of defendant's guilt." People v. Evans, 209 Ill.2d 194, 209 (2004).
¶ 35 To prove defendant guilty of aggravated fleeing or attempting to elude a peace officer, the State was required to prove that (1) defendant was driving or operating a motor vehicle, (2) a peace officer gave defendant a visual or audible signal directing him to stop the vehicle, (3) defendant willfully fled from or attempted to elude the officer, and (4) such flight or attempt to elude caused property damage in excess of $300. 625 ILCS 5/11-204(a), 11-204.1(a)(3) (West 2022). The only element disputed by defendant is the proposition that he willfully fled from or attempted to elude the officers.
¶ 36 Here, viewing the evidence in the light most favorable to the State, a rational trier of fact could have found beyond a reasonable doubt that defendant willfully fled from the officers on the morning of the incident. While the officers only had their lights and sirens on for a brief period of time and defendant was some distance ahead of them, defendant's vehicle could be seen on the squad car cameras when the officers' lights and sirens were activated. It was dark outside at the time, from which the jurors could have inferred the flashing lights from the squad cars would have been easily visible. Also, defendant's high rate of speed-estimated by Hollensteiner to have reached approximately 70 miles per hour and estimated by defendant to have reached up to 50 miles per hour-could support an inference that he saw the lights and heard the sirens and was trying to flee from the officers. While defendant testified that he did not see the lights or hear the sirens and that he was driving fast because he was upset about something that happened earlier, the jury was not required to accept his testimony as credible.
¶ 37 C. Improper Impeachment
¶ 38 Defendant argues that the State improperly impeached him by cross-examining him concerning his prior felony conviction rather than introducing a certified copy of the conviction into evidence. Defendant acknowledges that he failed to preserve this issue, as he did not object during the trial or raise the issue in a posttrial motion. See People v. Johnson, 238 Ill.2d 478, 484 (2010) ("When *** a defendant fails to object to an error at trial and include the error in a posttrial motion, he forfeits ordinary appellate review of that error."). However, defendant argues this issue is reviewable under the first prong of the plain error doctrine. Alternatively, defendant argues his trial counsel was ineffective for failing to object.
¶ 39 1. Plain Error
¶ 40 We first consider whether defendant's argument that the State improperly impeached him with his prior conviction on cross-examination is reviewable under the first prong of the plain error doctrine.
"[T]he plain-error doctrine allows a reviewing court to consider unpreserved error when (1) a clear or obvious error occurs 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) a clear or obvious error occurs
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." People v. Piatkowski, 225 Ill.2d 551, 565 (2007).
The first step under either prong of the plain error doctrine is determining whether a clear or obvious error occurred. People v. Sebby, 2017 IL 119445, ¶ 49.
¶ 41 "When the defendant testifies in a criminal case, the State may not impeach the defendant's testimony by cross-examination as to his or her prior conviction, but rather only by introducing the record of the prior conviction." People v. Naylor, 229 Ill.2d 584, 594 (2008); see People v. Kosearas, 408 Ill. 179, 181 (1951) ("[T]here is no question more damaging to a defendant with a jury than one which suggests or intimates that he is a criminal or has been charged with criminal offenses. Such damage is magnified twofold when it is elicited from a defendant on cross-examination and he is compelled to testify against himself.").
¶ 42 Here, a clear or obvious error occurred where the State impeached defendant with his prior conviction by cross-examining him about the conviction rather than introducing a record of the conviction. See Naylor, 229 Ill.2d at 594. Accordingly, we proceed to consider whether the evidence at trial as to the charge of aggravated fleeing or attempting to elude a peace officer was closely balanced such that the first prong of the plain error doctrine applies. See Piatkowski, 225 Ill.2d at 565. Such a determination requires us to "evaluate the totality of the evidence and conduct a qualitative, commonsense assessment of it within the context of the case." Sebby, 2017 IL 119445, ¶ 53. This 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.
¶ 43 We find that the evidence was not closely balanced in this case. While defendant testified that he did not see the lights or hear the sirens on the officers' vehicles and that he was driving fast because he was upset about something that had happened earlier, his version of the events was implausible. The officers' testimony and squad car video showed that the officers activated their lights and sirens while following defendant's vehicle. While defendant's vehicle was some distance ahead of the officers' vehicles and the officers' lights and sirens were on for only a brief period of time, the videos showed that it was dark outside during the pursuit, which would have made the officers' lights readily visible to defendant. Also, defendant's account- i.e., that he was driving so fast due to being upset about something that he lost control of his vehicle and crashed it into the side of a house-was implausible. Rather, defendant's excessive speed and erratic driving supports an inference that he was aware of the officers' lights and sirens and was trying to evade or flee from them.
¶ 44 2. Ineffective Assistance of Counsel
¶ 45 We next consider defendant's alternative argument that his counsel was ineffective for failing to object to the State cross-examining him concerning his prior conviction. "To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced the defendant." People v. Domagala, 2013 IL 113688, ¶ 36. That is, "a defendant must show that counsel's performance was objectively unreasonable under prevailing professional norms and that there is a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' "Id. (quoting Stricklandv. Washington, 466 U.S. 668, 694 (1984)).
¶ 46 Even assuming counsel performed deficiently by failing to object to the State's method of impeachment, a reasonable probability does not exist that the result of the trial would have been different if counsel had objected. The substance of defendant's testimony- particularly the portion where he claimed he was driving excessively fast because he was upset about something that had happened earlier in the day-was implausible. While the fact that he had a prior residential burglary conviction further reduced his credibility, it is not reasonably plausible that the jury would have found him not guilty of aggravated fleeing or attempting to elude a peace officer if this information had been introduced through records of the prior conviction rather than from his testimony. Notably, during cross-examination, the State did not dwell on defendant's prior conviction. The State merely asked defendant whether he had a prior felony conviction for residential burglary, and defendant confirmed that he did.
¶ 47 D. Violation of Rule 431(b)
¶ 48 Defendant also argues that the trial court violated Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) by failing to ascertain that one of the jurors, Juror 36, understood and accepted the principles set forth in the rule. Rule 431(b) provides:
"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 if a defendant does not testify it cannot be held against him or her; however, no inquiry of a prospective juror shall be made into the defendant's decision not 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."
¶ 49 The transcript in this case reflects that, during jury selection, Juror 36 indicated that he or she understood and accepted that defendant was presumed innocent and that the State was required to prove him guilty beyond a reasonable doubt. However, when the trial court asked Juror 36 if he or she understood and accepted that defendant did not need to present any evidence and it could not be used against him if he decided not to testify, a different juror answered the question. Juror 36 never indicated that he or she understood and accepted these two principles, and Juror 36 was ultimately selected to serve on the jury.
¶ 50 Defendant acknowledges that he failed to preserve this issue by failing to object during jury selection and by failing to include the issue in a posttrial motion. See Johnson, 238 Ill.2d at 484. However, he argues it is reviewable under the first prong of the plain error doctrine, which allows the reviewing court to considered unpreserved error where 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." Piatkowski, 225 Ill.2d at 565.
¶ 51 We find the trial court's failure to ascertain that Juror 36 understood and accepted that defendant was not required to offer any evidence on his own behalf and that it could not be held against him if he chose not to testify amounted to clear error, as Rule 431(b) required that the court ask these questions of all potential jurors and provide each juror an opportunity to respond. See Ill. S.Ct. R. 431(b) (eff. July 1, 2012). However, as previously discussed, the evidence in this case was not closely balanced, and, accordingly, the first prong of the plain error doctrine does not apply. See supra ¶ 43.
¶ 52 E. Cumulative Error
¶ 53 Defendant argues the cumulative effect of the unpreserved trial errors he has identified-namely, the allegedly improper jury instruction for leaving the scene of an accident, the trial court's violation of Rule 431(b), the improper impeachment of defendant during crossexamination, and the State exceeding the scope of direct examination when cross-examining defendant-deprived him of a fair trial and amounted to second-prong plain error.
¶ 54 An unpreserved error is reviewable under the second prong of the plain error doctrine where "a clear or obvious error occurs 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." Piatkowski, 225 Ill.2d at 565. "[W]hile individual trial errors may not require a reversal, those same errors considered together may have the cumulative effect of denying defendant a fair trial." People v. Speight, 153 Ill.2d 365, 376 (1992).
¶ 55 Initially, we will not consider here the effect on the fairness of the trial of the allegedly improper jury instruction for leaving the scene of an accident and the allegedly improper cross-examination of defendant regarding the vehicle's insurance. These arguments related only to defendant's convictions for leaving the scene of an accident and operating an uninsured motor vehicle, which we have reversed outright due to insufficient evidence. See supra ¶ 31.
¶ 56 We have determined that a clear or obvious error occurred when the trial court failed to ascertain whether Juror 36 understood and accepted two of the principles set forth in Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) and when the State improperly impeached defendant with his prior conviction during cross examination. See supra ¶¶ 42-43, 51. However, these errors, even considered cumulatively, were not so serious that they undermined the integrity of the judicial process or affected the fairness of defendant's trial for the offense of aggravated fleeing or attempting to elude a peace officer.
¶ 57 Our supreme court has held that a violation of Rule 431(b) does not rise to the level of second-prong plain error. People v. Thompson, 238 Ill.2d 598, 614-15 (2010). Also, as we have previously discussed, the prejudicial impact of the State's improper cross-examination of defendant was limited because the State only briefly questioned defendant as to the existence of his prior conviction and the substance of defendant's account of the incident was implausible. See supra ¶ 46. Accordingly, we conclude the cumulative effect of these two unpreserved errors did not render defendant's trial fundamentally unfair. See People v. Griffin, 178 Ill.2d 65, 90-91 (1997) ("[A] defendant is entitled to a fair trial, not a perfect one.").
¶ 58 F. Restitution
¶ 59 Defendant argues that his trial counsel provided ineffective assistance by agreeing at the sentencing hearing to restitution in the amount of $63,897.52. Citing People v. Hasprey, 194 Ill.2d 84 (2000), defendant contends that restitution is statutorily authorized only for offenses under the Criminal Code of 2012 (Criminal Code) (720 ILCS 5/1 et seq. (West 2022)). Defendant argues that, because he was convicted only of offenses under the Vehicle Code (625 ILCS 5/1 et seq. (West 2022)), the trial court had no authority to order him to pay restitution. Accordingly, he argues his counsel performed deficiently by stipulating to restitution, and he was prejudiced by being ordered to pay the unauthorized restitution.
¶ 60 To establish that his trial counsel was ineffective, a defendant must show (1) counsel's performance was deficient and (2) he was prejudiced by the deficient performance. Domagala, 2013 IL 113688, ¶ 36. That is, "a defendant must show that counsel's performance was objectively unreasonable under prevailing professional norms and that there is a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' "Id. (quoting Strickland, 466 U.S. at 694).
¶ 61 Section 5-5-6 of the Unified Code of Corrections (730 ILCS 5Z5-5-6 (West 2022)) states:
"In all convictions for offenses in violation of the Criminal Code of 1961 or the Criminal Code of 2012 or of Section 11-501 of the Illinois Vehicle Code in which the person received any injury to his or her person or damage to his or her real or personal property as a result of the criminal act of the defendant, the court shall order restitution as provided in this Section. In all other cases, except cases in which restitution is required under this Section, the court must at the sentence hearing determine whether restitution is an appropriate sentence to be imposed on each defendant convicted of an offense. If the court determines that an order directing the offender to make restitution is appropriate, the offender may be sentenced to make restitution." (Emphasis added.)
¶ 62 Pursuant to the plain language of section 5-5-6 of the Unified Code of Corrections (id.), restitution is mandatory for offenses in violation of the Criminal Code or of section 11-501 of the Vehicle Code (625 ILCS 5Z11-501 (West 2022)) involving personal injury or property damage. Thus, defendant's conviction for aggravated fleeing or attempting to elude a peace officer pursuant to section 11-204.1(a)(3) of the Vehicle Code (625 ILCS 5Z11-204.1(a)(3) (West 2022)) does not fall within the category of offenses for which restitution is mandatory.
¶ 63 However, section 5-5-6 of the Unified Code of Corrections (730 ILCS 5Z5-5-6 (West 2022)) also gives the trial court the authority to order a discretionary sentence of restitution "[i]n all other cases" where the court deems restitution appropriate. In People v. McCormick, 332 Ill.App.3d 491, 499 (2002), this court interpreted the phrase "[i]n all other cases" in the statute to mean that restitution is available for all criminal offenses, not just those in the Criminal Code. We agree with the McCormick court's interpretation. We find, pursuant to the plain language of section 5-5-6, the trial court had the authority to enter a discretionary sentence of restitution for the offense of aggravated fleeing or attempting to elude a peace officer in this case.
¶ 64 In reaching this conclusion, we reject defendant's reliance on Hasprey for the proposition that section 5-5-6 of the Unified Code of Corrections permits restitution only for offenses under the Criminal Code. In Hasprey, the court considered a prior version of the restitution statute, which provided:
" 'In all convictions for offenses in violation of the Criminal Code of 1961 in which the person received any injury to their person or damage to their real or personal property as a result of the criminal act of the defendant, the court shall order restitution as provided in this Section.'" Hasprey, 194 Ill.2d at 86 (quoting 730 ILCS 5Z5-5-6 (West 1998)).
The Hasprey court held that this version of the restitution statute authorized restitution only for violations of the Criminal Code. Id. However, the legislature subsequently amended the restitution statute to provide for discretionary restitution "[i]n all other cases." 730 ILCS 5Z5-5-6 (West 2022)). Accordingly, restitution is now available for all criminal offenses, not just those in the Criminal Code. McCormick, 332 Ill.App.3d at 499.
¶ 65 The only basis defendant has asserted in support of his argument that his trial counsel was ineffective for stipulating to the restitution order is the trial court's alleged lack of authority to enter such an order. As we have found the court had such authority, we conclude defendant has failed to show his counsel was ineffective for stipulating to the restitution order.
¶ 66 III. CONCLUSION
¶ 67 For the reasons stated, we reverse outright defendant's convictions for operating an uninsured motor vehicle and leaving the scene of an accident. We otherwise affirm the trial court's judgment.
¶ 68 Affirmed in part and reversed in part.